During the review we have performed of a decision ruled by a Romanian Court of Appeal in relation to a certain public procurement procedure which one of our clients won, one of the plaintiffs invoked, among other, that in the case at hand, the court must take into account and apply the provisions of a document entitled “White Paper on levelling the playing field as regards foreign subsidies”, issued by the European Commission on 17 June 2020.

By this document, which appears to be issued in view of the JOINT COMMUNICATION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL – EU-China – A strategic outlook from 12 March 2019, it is basically stated that, although the current legal framework regulating the public procurement field does not specifically provide a sanction for distortions in EU public procurement markets caused by foreign subsidies, the national contracting authorities have a wide margin of appreciation in analyzing the offers submitted in the public procurement procedures. Thus, despite of a non-existing sanction, the European Commission points out to the contracting authorities in relation to the diligence that they must show in the analysis of the offers from this point of view and, at the same time, provides a series of guidelines that should, in practice, be the foundation of a future European normative act that would effectively regulate this subject.

Shortly, and despite the fact that currently at the European Union level there is not yet any piece of legislation issued in connection with the aspects that White Paper envisages, the Romanian authorities adopted the Emergency Government Decision no 25/31 March 2021 amending and supplementing some normative acts in the field of public procurement, which was published in the Official Gazette no. 346 from 5 April 2021. In doing so, the Romanian legislator invoked, as EU legal framework grounds, the transposition of Article 25 of Directive 2014/24/EU on public procurement and of Article 43 of Directive 2014/25/EU. But, if read carefully, it seems that the real intention was that the ideas of the White Paper detailed in connection with the public procurement field to be actually implemented into the Romanian legislation in the public procurement field.

Should you be interested, you can access the full webinar we had on this subject on 21 April 2021, available here: __________________________