I have uploaded a new paper on SSRN on 'Territorial Extension and Case Law of the Court of Justice: Good Administration and Access to Justice in Procurement as a Case Study', which develops previously sketched ideas on the challenges that the 'regulatory export' of EU procurement rules can create for the functioning of the CJEU and the Commission in the context of the EU's external trade activity (see here). The abstract of the paper is as follows:
This paper explores some of the legal implications of the territorial extension or extraterritoriality of EU public procurement law through free trade agreements and planned flanking retaliatory EU trade policy. The paper has the starting position 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 towards its own procurement standards. The paper concentrates on the pursuit of this second goal and, in particular, on the implications of such territorial extension or extraterritoriality 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 due to its relevance in free trade agreements between the EU and third countries, as well as the relevance of statutory and case law requirements concerning procurement remedies. The paper assesses both the outwards and inwards implications of the functional territorial extension for the case law of the Court of Justice. 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.
The paper is freely available through SSRN: https://ssrn.com/abstract=3081061
