EU consultation submission: Withdrawing legal services from the light touch regime
This sixth entry covers a topic I did not look into earlier when discussing my ideas for the procurement reform. The issue of legal services has been in my mind for a couple of decades now ever since I started working in public procurement as a lawyer and the industry's special treatment has always looked odd to me. I do not think the special treatment it receives via the light touch regime is warranted in this day and age.
- There is an old joke about influence in the making of new procurement legislation: how do you find out which industries have influence with EU institutions? You look at the list of Annex II B Services. Truth be told, the joke no longer holds as well since we currently have the light-touch regime for social and other specific services.
- For legal services, however, the situation is even better than in 2004 since the core of the services they provide - namely legal representation and legal advice in preparation for representation - are currently excluded by Article 10 from Directive 2014/24/EU.
- While we have more EU law than ever, including in public procurement, the EU institutions have carved out the legal market from being subject to the bulk of procurement rules as any other industry. While it is debatable if the exclusion of Article 10 is really necessary, since it did not exist previously and yet contracting authorities were always able to obtain legal advice and representation, overall there is no reason why the legal services industry should be treated differently from other services industries.
- The legal industry has no problem being involved in private procurement processes when bidding for business, especially at the top end of the market so they should not be protected from competition in public procurement. The legal services market is by itself prone to foreclosing along national borders, this is just an unnecessary protectionist measure entrenching existing players in any given market.