BOOK REVIEW: The Law of EU Public Procurement (second edition)

In this heavyweight book, Professor Christopher Bovis seeks to explain the jurisprudence governing how European public procurement is regulated. He places this in the context of ‘neo-classical economic theory’ – the concept that the market will operate most effectively if left free of regulation.

Any EU procurement textbook will inevitably be compared with Professor Sue Arrowsmith’s authoritative The Law of Public and Utilities Procurement. However, the latest version of this was published in 2014. I was, therefore, looking forward to a more recent treatment of the 2014 Directives and the Public Contracts Regulations 2015. In this respect, the book is a disappointment. It treats the 2004 Directives as ‘current’ and analyses that legislation. The 2014 Directives are described as ‘new’ and the text even refers in some places to earlier drafts of the 2014 Directives rather than final versions.

Despite this, there are a number of useful areas in the book. The discussion on the ‘functionality’ and ‘dependency’ tests (in relation to whether an organisation is a contracting authority subject to the EU rules) is helpful, especially when considering whether the extent of deregulation being considered for housing associations will mean they are no longer contracting authorities. There is an interesting discussion too of the ‘control’ and ‘entrustment of activities’ tests, on exempting contracts within group structures from tendering.

The section on ‘cross-border interest’ is a helpful supplement to Professor Arrowsmith’s treatment of this, given the scarcity of case law on such an important practical topic. And the analysis of the EVN case (where renewable energy levels were used as an award criterion) is a helpful explanation of the court’s approach.

There are some places where a more thorough edit would have been beneficial. Several topics reappear in different places and some paragraphs are repeated verbatim.

The book retails at £175 for a 680-page hardback (excluding the appendices containing the 2014 Directives). For me, it will never displace Arrowsmith as the go-to text on EU public procurement rules, but it does provide a European jurisprudential perspective that helps illuminate some of their darker, but important, corners.

Andrew Millross is a partner at Anthony Collins Solicitors, Birmingham and a member of the Procurement Lawyers’ Association