Public procurement is not a topic that rates highly when lawyers meet and chat. However, our members have been pressing us to look at the proposed new directive on public procurement, and so we are hurriedly doing so.

There are European Union directives on public procurement. There was a consultation on them last year by the European commission. Now there is a new proposal on the table, which was published on 20 December 2011, which will change the way in which public procurement will work for legal services.

Under the current regime, contained in the 2004/18 directive, services are divided into two categories (A and B) on the basis of their perceived tradability. The 16 category A services, assumed to be better suited for cross-border procurement, are subject to the full procedures like works or supply contracts, while the eleven category B services (which includes legal services), assumed to be less tradable, are subject to a lighter regime. Now the commission is proposing to abolish the distinction, and so legal services will fall under the general regime.

The reason for the proposed change is that the commission concluded from its evaluation that it is no longer justified to restrict the application of the normal procurement regime to certain services only, given that the cross-border tradability of some services which were not thought to be very tradable is not significantly lower than those in the tradable category. For legal services and hotel and restaurant services, for instance, both of which were in the specific regime of category B (less tradable), evaluation showed that the percentage of cross-border trade is significantly higher than the average for services falling under the full procurement regime (or category A, more tradable).

For example, 21.2% of the total value of contracts for legal services (in category B) was awarded directly cross-border, compared to the average of 2.8% for category A services. These findings suggest to the commission that, as far as some sectors are concerned, the distinction between tradable and non-tradable sectors is arbitrary. Therefore, except for social services, it proposes that the standard rules will now apply to all services.

So, the new distinction is between social services and the rest. In the past, legal services were effectively within the social services bracket. As for the background, the evaluation showed that social, health and education services have specific characteristics which make them inappropriate for the application of the regular procedures for the award of public service contracts. These services are typically provided within a specific context that varies widely between member states due to different administrative, organisational and cultural circumstances.

The services have, by their very nature, says the commission, only a very limited cross-border dimension. The commission believes that member states should therefore continue to have large discretion to organise the choice of service providers in this field. The proposal does this by providing a specific regime for public contracts for these services, imposing only respect for basic principles of transparency and equal treatment.

The Council of Bars and Law Societies of Europe (CCBE) is still considering its response, but our members are concerned about the removal of legal services from the specific to the general category. I suspect that they will argue that legal services should be put in the same new category as social services, with arguments to counter the ones given above.

Another part drawn to our attention is the new article 87, which under the heading of ‘Assistance to contracting authorities and businesses’ says that member states shall make available technical support structures in order to provide legal and economic advice, guidance and assistance to contracting authorities in preparing and carrying out procurement procedures. The question is whether this means that member states will take over the role of providing legal advice, which is unlikely to be acceptable.

So be up-to-date at the water cooler: talk about the ramifications of the latest public procurement proposals emanating from the commission.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs