The third PurpLE research seminar, held on the 5th and 6th of September 2024, brought together 23 legal scholars from 15 European universities to discuss the dynamic intersections of EU Public Procurement and Contract Law. The event provided a platform for PurpLE project Anthology authors to present their preliminary research findings, exchange ideas, and gain insights through mutual feedback. The Anthology, a comprehensive book, will publish the results of the project’s research.

Day 1 Highlights

Keynote by Professor Steven Van Garsse (Hasselt University)

Professor Steven Van Garsse from Hasselt University opened the event with a keynote addressing the role of civil law in public contracts, examining both theory and practice. He highlighted how, in Belgium, public and private law intersect, with administrative law overseeing the award phase while civil law governs contract performance. Notably, exceptions exist, such as culpa in contrahendo – the subject of an upcoming PurpLE project publication. Professor Van Garsse emphasised the growing overlap between these legal branches, particularly in the practical handling of public contracts. He concluded that this interaction between administrative and civil law creates a hybrid legal framework, making the traditional rigid public-private law divide increasingly less relevant.

Legal Asymmetries, “Freedom from contract” and Public Procurement

Following the keynote address, Professor Willem Janssen (Groningen and Utrecht University) and PhD candidate Matanja Pinto (Maastricht University) discussed the legal asymmetries in public procurement related to contract withdrawals and the division of risk between parties to a public contract. Their presentation highlighted the tension between the principle of freedom of contract—specifically the concept of “freedom from contract”—and the judicial scrutiny of procurement decisions. Approaching the topic from a Dutch perspective, Professor Janssen and PhD candidate Pinto noted that contracting authorities have considerable discretion when making withdrawal decisions. However, they pointed out that European case law, such as case C‑440/13 Croce Amica and case C-496/99 CAS Succhi di Frutta, showcases this discretion while simultaneously enforcing strict adherence to the principles of equal treatment and transparency in contract awards.

Tacit Modifications in Public Contracts

The next presentation, titled “I Did Not Sign Anything – Can a Tacit Modification Constitute a Contract Amendment under EU Procurement Rules?”, was delivered by Professor Kirsi-Maria Halonen and PhD candidate Aarne Puisto, both from the University of Lapland. They examined the formal requirements for contract modifications, the differences in national approaches, and the impact of the CJEU ruling in the case C-441/22 Obshtina Razgrad. The speakers highlighted the complexity of interpreting public contracts including the lens of contract law and recalled when deviations from the original contract terms could be considered substantial amendments. They concluded that while EU public procurement law requires procurement contracts to be in writing, it does not explicitly state that modifications must follow the same format. In this context, they referenced the Obshtina Razgrad case, where the CJEU clarified that, for a contract modification to occur under procurement rules, both parties must demonstrate an intention to renegotiate the contract. Such renegotiations are typically documented in writing, making purely tacit modifications largely theoretical.

Contracting Authority’s Duty to Cooperate

After a short break, the discussion continued with Professor Ole Hansen from the University of Copenhagen, who presented a joint work on “The Contracting Authority’s Duty to Cooperate with the Supplier in the Contract Performance Phase – Contractual Adjustments Inside and Outside the Realm of Article 72 of Directive 2014/24/EU.” The chapter explores the tension between the need for flexibility in public contracts and the restrictions imposed by EU Public Procurement law. Professor Hansen emphasised the importance of good faith and loyal cooperation, particularly within Nordic law, where a “private model” is applied to public contracts, necessitating the use of contract law principles. He also pointed out that while cooperation between the contracting authority and supplier is often essential for contract performance, it could potentially breach public procurement provisions concerning contract modifications. This raised the question of whether contract law principles could mitigate the strictness of Article 72 of Directive 2014/24/EU. Professor Hansen further analysed termination rights under Article 73 of the Directive, particularly within the framework of Danish law, concluding that contract law claims can persist beyond the public procurement regime.

Comparative Arbitration of Public Contracts in Nordic Perspective

After lunch, Associate Professor Sylvie Cécile Cavaleri (University of Copenhagen) delivered the presentation titled “Can the Effectiveness of European Public Procurement Law Be Ensured if Disputes Related to the Performance of Public Contracts Are Settled by International Commercial Arbitration?”. In her presentation, Professor Cavaleri explored the compatibility of international commercial arbitration with EU public procurement law. The presentation raised key questions about the arbitrability of such disputes, the potential conflicts between arbitration and public procurement principles (such as transparency and accountability), and whether state courts can set aside arbitral awards if they conflict with public procurement law.

Comparative Arbitration of Public Contracts in France, Portugal, and Spain 

The last presentation of the day was titled “Arbitration Regarding Public Contracts in the Legal Regimes of France, Portugal, and Spain” and was delivered by Associate Professor Miguel Assis Raimundo (University of Lisbon). Professor Raimundo presented comparative research on arbitration and public procurement in the mentioned three jurisdictions that he conducted with Professor François Lichère (University of Jean Moulin Lyon 3), Professor Mehdi Lahouazi (University of Paris Nanterre), and Professor Isabel Gallego Córcoles (University of Albacete) and concluded that while France, Portugal, and Spain share common arbitration principles, some notable differences remain. These include specific authorisations for arbitration and the exclusion of equity-based rulings. Furthermore, Professor Raimundo stressed that despite existing rules and exceptions, none of these legal systems had developed a comprehensive framework for administrative arbitration, and the usage of arbitration in itself for matters relating to public procurement contracts remains a controversial issue.

Day 2 Highlights

Public Procurement Meets Contract Law

The day began with a presentation by Associate Professor Marta Andhov (University of Auckland and University of Copenhagen) and Professor Michał Kania (University of Silesia and Senior Researcher at the University of Copenhagen), titled “Where Public Procurement Meets Contract Law: Entry Points and Their Consequences.” Their goal was to identify key entry points for applying contract law during the performance of public contracts. They began by outlining the classification of public contracts within the EU, using European contract law as a theoretical foundation to understand these contracts as commercial transactions. They emphasised the role of European Public Procurement law harmonisation as a framework for contract formation and highlighted its significant impact on public contract performance. The presentation continued with an exploration of the different models of public contract regulation across EU Member States, distinguishing between ‘public’ and ‘private’ models.

Contract Law Principles in Public Contracts? 

The second presentation, titled “Contract Law Principles in the Context of Public Procurement Law,” was again delivered by Associate Professor Marta Andhov (University of Auckland and University of Copenhagen) and Professor Michał Kania (University of Silesia and Senior Researcher at the University of Copenhagen). This time, the authors examined the relationship between key contract law principles—such as freedom of contract, parties’ autonomy, good faith and fair dealing, pacta sunt servanda, and equality of parties—and their application to public contracts. They emphasised that public procurement law places significant restrictions on contractual freedom in order to uphold fundamental principles like transparency, equality, and non-discrimination. However, they also highlighted that public contracts share many characteristics with commercial contracts, which calls for the application of contract law when public procurement law alone is insufficient. As a preliminary conclusion, they argued that the relationship between public procurement law and contract law should be seen as dynamic; public procurement law often influences how contract law is applied rather than completely replacing it.

Computational Contracts in Public and Private Law Perspective 

After the break, Professor Alexandra Andhov (University of Auckland and University of Copenhagen) delivered an analysis of computational contracts and their place within European contract and public procurement law. She specifically examined how these contracts align with the existing legal frameworks of EU Contract Law and EU Public Procurement law. The presentation focused on the form, language, interpretation, and performance of computational contracts, highlighting their potential to streamline complex processes during the performance phase of public contracts. However, Professor Andhov also addressed the challenges of implementing computational contracts, such as the inherent ambiguity of language, and emphasised the need to balance efficiency with the core principles of EU Public Procurement law. Her insights aimed to guide future contracting practices for both contracting authorities and economic operators.

Third-Party Enforcing Sustainability Clauses in Public Contracts

The next presentation was delivered by PhD candidate Ezgi Uysal (University of Turin) and Associate Professor Katerina Mitkidis (Aarhus University) on “Enforcing Sustainability Clauses in Public Contracts: Third-party Enforcement Caught between the Privity of Contract and Conflicting Interests.” They began by examining the classic contract law doctrine of privity, which traditionally limits contract rights and obligations to the parties involved. They then posed the question of whether third-party interests could justify exceptions to this doctrine under public procurement law, particularly given the growing use of sustainability clauses as legal tools to manage environmental, social, and labour risks. However, they highlighted the challenges of enforcing these clauses, such as vague contractual language, limited monitoring resources, and difficulties in measuring compliance, especially for environmental obligations. The role of third-party enforcement was analysed from three perspectives: third-party beneficiaries, interested economic operators, and supervisory bodies. While third-party beneficiaries can sometimes enforce sustainability clauses directly, economic operators and supervisory bodies may only do so indirectly when issues with contract performance or public funds arise. In conclusion, they argued that although the privity of the contract remains a barrier, it can be pierced in certain circumstances to strengthen the enforcement of sustainability obligations.

New Due Diligence Obligations in Public and Private Contracts

This was followed by a presentation by Assistant Professor Maria Edith Lindholm Gausdal (University of Copenhagen), who provided a thorough analysis of due diligence in the context of European public procurement law in light of the newly enacted EU Corporate Sustainability Due Diligence Directive (CSDDD). Although contracting authorities are not directly subject to the CSDDD, she argued that the directive would still have an indirect impact on public procurement law, due to increased societal expectations and lack of  fundamental differences between the procurement activities of public authorities and companies. In support of this, she cited the Danish Lauge Koch case from 2018, which arose when the Danish Ministry of Defence lacked a system for risk-based due diligence in its contracts with suppliers. Finally, she questioned whether Article 31 of the CSDDD, which requires due diligence to be incorporated into award criteria, aligns with Article 70 and Article 67(3) of Directive 2014/24/EU, which stipulate that all criteria must be linked to the subject matter of the contract.

Sustainability in Private and Public Contracts

Finally, the presentation titled “Sustainability in Private and Public Contracts: The Same or Different?” was delivered by Postdoc Désirée Klingler (Hasselt University) and PhD Candidate Patrick Zimmermann (Ludwig-Maximilians-University of Munich). As a starting point of their presentation, they compared private law concepts like ESG and CSR with the concept of sustainability in public procurement law. Further, they discussed the enforcement of sustainability clauses as similar in both public and private domains. To support argument authors stressed out that public contracts are often enforced through private law. However, the enforceability of environmental clauses remains uncertain, as they are difficult to measure. They concluded the presentation by questioning the feasibility of harmonising EU law on contract enforcement.

Next Steps

The Research Seminar provided an excellent platform to further explore the intricate relationship between contract law, arbitration, and public procurement law. It also highlighted the complex interactions and interrelations between these legal branches, reinforcing the significance and depth of this research project. While the unique nature of national legal systems was evident, similar solutions emerged, though categorised differently as “public” and “private” models. This project is innovative in its approach, bringing together contract law scholars and public procurement law experts to showcase diverse perspectives and considerations in each chapter.

Many of the chapters presented were the result of collaborative research and writing. Each presentation benefited from valuable feedback and cross-jurisdictional perspectives, thanks to contributions from Professor Vibe Garf Ulfbeck (University of Copenhagen), Professor Steven van Garsse (Hasselt University), Professor Miguel Assis Raimundo (University of Lisbon), Professor Cristina Poncibo (University of Turin), Professor Roberto Caranta (University of Turin), Professor Alberto Odenino (University of Turin) and PhD Candidate Džeina Gaile (University of Latvia). Special thanks go to Professor François Lichère (University of Jean Moulin Lyon 3) and Professor Arnaud Raynouard (Université Paris-Dauphine) for their invaluable insights.

The next steps in the project will involve refining the drafts presented and further integrating cross-jurisdictional perspectives. The next PurpLE Anthology meeting is planned for 2025.