European Union regulation has undergone significant change since the introduction of the first regulations on the reuse of public sector information in 2003. The European Data Strategy, approved in 2020, has expanded this regulatory approach from two key perspectives.
Firstly, governance models are promoted that incorporate, from the design phase and by default, respect for various relevant legal rights and interests, such as the protection of personal data, intellectual property and trade secrets, highlighted in the Data Governance Regulation. Secondly, the scope of the regulations is expanded beyond the public sector, covering obligations aimed at private entities, evidenced by the Data Law approved in November 2023.
In this context, data spaces gain prominence, not only due to the importance of the sectors they cover (health, mobility, environment, energy), but also due to their key role in overcoming technical and legal obstacles to sharing data. In Spain, it has already been legally provided for through a specific section in the Public Sector Contracting Platform.
The Strategy contemplates the creation of a “common European data space” for public administrations, seeking to improve transparency, accountability, fight against corruption and support the application of EU legislation. However, the dispersion and need to improve data quality is recognized, especially in public procurement.
Why a data space in public procurement? Given the relevance of public procurement, representing close to 14% of the EU’s GDP, the aim is to boost a more innovative economy. Although there is a wealth of information on public procurement, its current usefulness for taxpayers, authorities and buyers is limited, according to the Commission.
The 2014 regulation favored the use of electronic means in the dissemination of information, but presented limitations. It applies only to contracts that exceed thresholds set at European level (limiting to 20% of public procurement), excludes the contractual execution phase and does not establish the need for open formats for the automated reuse of information.
Despite progress in standardizing data collection, a more ambitious approach is proposed to fully realize the potential of public procurement data. The creation of an EU platform combining tools based on advanced technologies, especially artificial intelligence, is planned.
The advantages include more precise decision-making for public entities, better control by authorities and society, and more effective access for companies and SMEs to information on contracting procedures.
What are the legal challenges? The current limitation of the publication obligation to contracts above European thresholds is highlighted, leaving out the majority of tenders and depending on the Member States to establish additional obligations. The Commission seeks to create a harmonized set of data and make the publication of contract termination notices mandatory to obtain a complete view of the procurement cycle.
The reliability of published data is another challenge, and automated data-driven processing models are advocated to overcome digitalization issues and ensure interoperability. The initiative requires a solid regulatory base, establishing clear legal obligations for Member States and public entities.
In summary, the proposal for a European Data Space in Public Procurement promises to positively impact contractual activity, companies and society, but faces legal challenges that require robust and updated regulation.
