Territorial Extension and Case Law of the Court of Justice: Good Administration and Access to Justice in Procurement as a Case Study

Abstract

This paper uses EU trade policy to explore some of the legal implications of the territorial extension or extraterritoriality of EU public procurement law. The paper’s starting position is that, with this policy and regulatory approach, the EU pursues two main goals: first, to further global standards of human rights protection and, second, to further regulatory convergence toward its own procurement standards. The paper concentrates on the pursuit of this second goal and, in particular, on the implications of such territorial extension of EU procurement law for the case law of the Court of Justice on good administration and access to justice, as recognised in the Charter of Fundamental Rights of the European Union. The paper concentrates on public procurement because of its relevance in free trade agreements between the EU and third countries, as well as the relevance of legislative and case law requirements concerning procurement remedies. The paper assesses both the outward and inward implications of the territorial extension for the Court of Justice’s case law. The discussion in the paper also raises general issues concerning procedural design and the consideration of foreign law by the Court of Justice in different settings.