European External Migration Funds and Public Procurement Law

T.P. Spijkerboer, E. Steyger

Research output: Contribution to JournalArticleAcademicpeer-review

Abstract

Since 2014, the European Union has established three funds (for Africa, Syria, and refugees in Turkey) to implement its external migration policy. In this Article, we analyse whether these funds and their implementation are compatible with EU public procurement law. This leads to a mixed picture. The wholesale exemption of expenditure under the EU Trust Fund for Africa from public procurement is incompatible with EU law; the exemption is not motivated, and it is implausible that there is a crisis in all 26 African countries where the Trust Fund operates thorough the duration of the Trust Fund. However, some more limited exceptions may apply, allowing for exempting particular projects from public procurement. Whether or not public procurement has taken place is often not transparent. It is remarkable that the notion of emergency is used in a cursory manner. It is equally remarkable that European public procurement law is not well integrated in external migration policy.
Original languageEnglish
Pages (from-to)493-521
Number of pages29
JournalEuropean papers
Volume4
Issue number2
DOIs
Publication statusPublished - 2019

Funding

site.137 The project is to be implemented by indirect management by IOM for a 16,8 million euros component, and by direct management in the form of grants to civil society organisations for a 3 million euros protection fund.138 IOM is argued to be well placed to implement the project, and for the repatriation component it is said to be the only organisation able to perform this kind of interventions in Libya at that moment.139 For the grants to be awarded for the protection fund, the action fiche sets out eligibility criteria, essential selection and award criteria, and argues that pursuant to Art. 192 of Regulation 966/2012, EU financing may amount to 100 per cent instead of the usual 80 per cent because full funding is essential for the action to be carried out; this will be justified in the grant award decision. The action fiche refers to the general crisis exception in the EUTF Africa to argue that “flexible procedures” are applicable.140 It does not explicitly refer to procurement, but from the context it is evident that this is what is meant. * Professor of Migration Law, Vrije Universiteit Amsterdam, t.p.spijkerboer@vu.nl; Raoul Wallenberg Visiting Professor of Human Rights and Humanitarian Law, Lund University; his research for this Article was funded by the Marianne and Marcus Wallenberg Foundation. ** Professor of European Administrative Law, Vrije Universiteit Amsterdam, e.steyger@vu.nl.

FundersFunder number
Fondazione Istituto Oncologico del Mediterraneo966/2012
Lunds Universitet
Marcus och Amalia Wallenbergs minnesfond

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