Regulation 81 – Composition of the jury

Commentary

Regulation 81 PCR2015 transposes Article 81 of Directive 2014/24/EU and imposes two straightforward and minimal rules controlling the composition of the jury for design contests. First, it is clear that the jury shall be composed exclusively of natural persons who are independent of participants in the contest (Regulation 81(1) PCR2015). Second, where a particular professional qualification is required from participants in a contest, at least a third of the members of the jury shall have that qualification or an equivalent qualification (Regulation 81(2) PCR2015).

Regarding the first requirement of independence of the members of the jury, it seems quite natural that the absence of conflicts of interest will need to meet the requirements of Regulation 24 PCR2015 and that, in the case of unavoidable/unavoided conflicts of interest, the conflicted participant should be excluded from the design contest as per Regulation 57(8)(e) PCR2015 (although, once more, the fact that such ground for exclusion is discretionary does not really help much).

Regarding the second requirement, from a technical perspective, it makes sense to require that a significant part of the jury holds qualifications needed to assess the project from a technical point of view. This makes sense but we may encounter problems once multiple qualifications are required. Let’s imagine that for a building design contest it is required from the contestants a qualification in both architecture and engineering. Would this mean that one third of the jury members needed to have a qualification in architecture and a third as well in engineering? There is nothing to forbid each natural person to accumulate qualifications so in theory a dually qualified architect/engineer would count towards both requirements.

Of course, the requirement for participants and members of the jury to hold such qualification needs to be justified and proportionate. And the general rules of the Services Directive (Directive 123/2006/EC) and, generally, on professional regulation and free movement need to be respected. Those issues are not specific to design contests and would require comments beyond the scope of this commentary. Suffice it to raise here that unreasonable or disproportionate requirements regarding (unjustified) professional restrictions could fall afoul of Article 101 TFEU as either a concerted practice or a recommendation of an association of undertakings [for an introduction to this general discussion, see IE Wendt, EU Competition Law and Liberal Professions: an Uneasy Relationship?, Nijhoff Studies in European Union Law vol. 2 (Leiden, Martinus Nijhoff, 2013)]. Hence, contracting authorities will be well advised to seek competition clearance where there are risks of illegitimate or unjustified foreclosure of non-qualified participants.

Last modified: December 5, 2016 by Pedro Telles

81.—(1) The jury shall be composed exclusively of natural persons who are independent of participants in the contest.

(2) Where a particular professional qualification is required from participants in a contest, at least a third of the members of the jury shall have that qualification or an equivalent qualification.