Around every ten years, the European Union adopts new directives relative to public markets. It is then incumbent on member states to apply these directives. Barely one year after adopting the European regulations of …2004, Belgium must now take on board those directives voted by The EU in 2014. These include three major developments: the integration of environmental criteria, social parameters and the computerization of contracting processes. Ann Lawrence Durviaux, Professor of law at the University of Liege, has just published a handbook(1) that reviews these changes.

It involves everything from buying paper for printers and the designation of a company responsible for the construction of a building, to the choice of an organic fruit and vegetable supplier: despite the fact that these operations stem from a public structure, they must be classed as ‘public market’. Countries, regions, communes and local and regional authorities are all in the same category whenever a contract involving pecuniary considerations is agreed with a partner.

Hardly a day passes without a new call to tender being issued. Every year in Belgium, around 20,000 contracting authorities put no less than 50 billion Euros into the purchase of building works (30%) and suppliers and services (70%). This generates no less than 550,000 direct and indirect jobs(2).

Under the influence of continuously successive reforms over the last 50 years, the relevant legislation is becoming more modern. “And it is also becoming slightly more complicated”! Says Ann Lawrence Durviaux, who is a lawyer and Professor at the law faculty of the University of Liege and who is also the author of several books on this subject. These include: ‘reform of the public markets’ due to be published by Bruylant(3), and ‘Handbook of market and public contracts law’ recently published by La Charte(4). “But it is not the law that is becoming complex”, she adds. “It is society itself”.

Simplification and facilitation

On the 1^st of July 2013, Belgium officially adopted new regulations for public markets resulting in the transposition of European directives formulated in… 2004. Is it a slow process? Undoubtedly so, but the financial crisis and the 541 days spent without a fully functioning government did not really help to speed things up.

No sooner were these new regulations promulgated than new regulations were announced. On the 15th of January 2014, the European Parliament voted in favour of new directives which member states must incorporate into their national law by April 2016.   

These directives are inspired by good practices present in the different countries of the European Union and according to the EU should lead to the “simplification and facilitation of market contracting procedures”. Could this be seen as a revolution? It is more like an evolution. The essence of the law is not modified but is well reinforced. “When a public authority chooses a partner, all companies of the European Union must be placed in competition with each other without discrimination. This is a fundamental issue now” explains Ann Lawrence Durviaux, “whereas before, we tended to think of things on a national scale”.

The specificity of services

Whenever public markets are mentioned, the first reflex is normally to think of infrastructural building projects, the erection of buildings or the supply of materials. Historically, legislation was built on this basis and modes of contracting were designed. But apart from assets, these procedures apply more and more to the supply of services.

“Buying a car is a very different act than choosing a doctor. In the second case, expertise and the bond of confidence are important parameters. The subjective aspect is much greater”, states the Professor.  While formerly, they were very standardized and based on the analysis of factual points, procedures now tend to take intellectual aspects into account. “Reintroducing elements which affect people in their choice of supply is one of the major developments. The directives of 2014 allow for this specificity relative to the supply of services. ”

(1) Ann Lawrence DURVIAUX, La passation et l'exécution des marchés publics. Secteurs classiques et spéciaux, Dossiers, Larcier, 2014.
(2) Source : banque Belfius.
(3) Ann Lawrence DURVIAUX (sous la dir. de), La réforme des marchés publics. Actes du colloque de la Commission vie et droit des affaires, Bruxelles, Bruylant, à paraître en 2014.
(4)  Ann Lawrence DURVIAUX, Précis de droit des marchés et contrats publics, Bruxelles, La Charte, coll. Bibliothèque de droit administratif, 2014.