Assessing the public administration's intention in EU economic law:chasing ghosts or dressing windows?

AbstractHere I reflect on the role of subjective or intentional elements in EU economic law prohibitions, particularly in relation to rules concerning public administration. From a normative perspective, it is desirable to suppress the need for an assessment of subjective intent and to proceed with an objectified enforcement of such prohibitions. With this in view, I consider public procurement and Member State aid rules as two examples of areas of EU economic law subjected to interpretative and enforcement difficulties due to the introduction – sometimes veiled – of subjective elements in their main prohibitions. I establish parallels with other areas of EU economic law – such as antitrust, non-discrimination law and the common agricultural policy – and seek benchmarks to support the main thesis that such intentional elements need to be ‘objectified’, so that EU economic law can be enforced against the public administration to an adequate standard of legal certainty. This mirrors the development of the doctrine of abuse of EU law, where a similar ‘objectification’ in the assessment of subjective elements has taken place.I draw on the case law of the Court of Justice of the European Union to support such ‘objectification’ and highlight how the Court has been engaging in such interpretative strategy for some time. The paper explores the interplay between this approach and more general protections against behaviour of the public administration in breach of EU law: the right to good administration in Article 41 of the Charter of Fundamental Rights of the European Union and the doctrine of State liability for infringement of EU law. I conclude with the normative recommendation that the main prohibitions of EU economic law should be free from subjective elements focused on the intention of the public administration.</jats:p

The PPE scandal shines a light on the worrying future of UK procurement law

Albert Sanchez-Graells reflects on the case of the procurement of personal protective equipment (PPE) for the English NHS during the pandemic. In doing so he lays bare the more general problems in the government’s approach to the governance of public procurement and its increasing insularity as a result of Brexit

Responsibly Buying Artificial Intelligence: A ‘Regulatory Hallucination’:A ‘Regulatory Hallucination’

As part of its ‘pro-innovation’ approach to artificial intelligence (AI), the UK has left public sector AI procurement and deployment to ‘regulation by contract’ based on thin guidance. Borrowing from the description of AI ‘hallucinations’ as plausible but incorrect answers given with high confidence by AI systems, I argue that this is a ‘regulatory hallucination’: an incorrect answer to the challenge of regulating the procurement and use of AI by the public sector. The pretence that public buyers can ‘confidently and responsibly procure AI technologies’ can generate individual harms and broader negative social effects as the public sector ramps up AI adoption and accumulates a potentially significant stock of AI deployments across all areas of public sector activity. I sketch an alternative strategy to boost the effectiveness of the goals of AI regulation and the protection of individual rights and collective interests through the creation of an independent authority

Why the proposed post-Brexit procurement reform may not achieve the transformation it intends

Albert Sanchez-Graells reflects on the government’s proposals for the post-Brexit reform of public procurement law. Contrary to the goals of simplifying the system to foster innovation and value for money, he argues that the deregulatory proposals are likely to overcomplicate the system and increase the administrative burden