Antonio Tejeda Encinas , President of the Euro-American Committee of Digital Law - CEA Digital Law
EU regulation has changed significantly since the first rules on the re-use of public sector information were introduced in 2003. The European Strategy for Data, adopted in 2020, has broadened this regulatory approach in two key respects.
First, it promotes governance models that build in, by design and by default, respect for a range of relevant rights and legally protected interests, such as personal data protection, intellectual property and trade secrets, as the Data Governance Act makes clear. Second, it extends the scope of the rules beyond the public sector to include obligations aimed at private entities, as shown by the Data Act, adopted in November 2023.
Against this background, data spaces are taking centre stage, not only because of the importance of the sectors they cover (health, mobility, the environment, energy), but also because of their key role in overcoming the technical and legal obstacles to data sharing. In Spain, the law already provides for a dedicated section on the ‘Plataforma de Contratación del Sector Público’ (the national public procurement platform).
The Strategy envisages the creation of a ‘common European data space’ for public administrations, with the aim of improving transparency and accountability, fighting corruption and supporting the enforcement of EU law. However, it acknowledges that the data are fragmented and that their quality needs to improve, particularly in public procurement.
Why a data space for public procurement? Public procurement accounts for around 14% of EU GDP, so the aim is to stimulate a more innovative economy. Although there is a wealth of information on public procurement, the Commission considers that it is currently of limited use to taxpayers, authorities and buyers.
The 2014 rules encouraged the use of electronic means to publish information, but they had their limitations. They apply only to contracts above thresholds set at EU level (which restricts them to 20% of public procurement), they exclude the contract performance stage, and they do not require open formats that would allow the information to be re-used automatically.
Despite progress in standardising data collection, a more ambitious approach is proposed in order to exploit the full potential of public procurement data. The plan is to create an EU platform combining tools based on advanced technologies, particularly artificial intelligence.
The benefits include more accurate decision-making by public bodies, closer scrutiny by the authorities and by society, and more effective access for businesses and SMEs to information on procurement procedures.
What are the legal challenges? One is that the publication requirement currently applies only to contracts above the EU thresholds, which leaves most tenders outside its scope and means that it is up to Member States to impose any further obligations. The Commission aims to create a harmonised data set and to make contract completion notices mandatory, so as to obtain a complete picture of the procurement cycle.
The reliability of published data is another challenge, and automated, data-driven processing models are advocated as a way of overcoming digitalisation problems and ensuring interoperability. The initiative needs a solid legal basis that lays down clear legal obligations for Member States and public bodies.
In short, the proposed European Public Procurement Data Space promises to have a positive impact on contracting activity, businesses and society, but it faces legal challenges that call for robust, up-to-date regulation.
Boletim
Eventos, notícias e análises sobre direito digital, no seu e-mail. Só quando houver novidades.
