Life after Irgita (C-285/18) – More Questions Than Answers

Abstract

The principles governing public procurement – equal treatment, non-discrimination, transparency, proportionality, etc. – serve upholding the fair use of public resources and ensuring compliance with EU‑level law. Sometimes, the open market is not the most efficient option, particularly when the public sector possesses the necessary resources. To address this, the EU’s procurement directives permit deviations from established public procurement rules for in-house transactions or horizontal co‑operation within the public sector. These involve determining whether to utilise internal resources or external ones, however, recent European Court of Justice cases have revealed uncertainties with regard to the process of this ‘make or buy?’ decision. While Member States retain freedom in evaluating how to meet their needs, that freedom is not unlimited and must be balanced with adherence to general principles of EU law. The article addresses the doubts that persist notwithstanding the Court’s analysis, most notably in Irgita (C-285/18). In light of a clear need for clarity related to the addressees of the key rule, its applicability, and the impact of general principles of EU law on the make-or-buy decision, the discussion tackles these matters as pressing questions.