Summary As proposed in the Cloud and AI Development Act (CADA), public-sector bodies accede to the common procurement framework by joining the agreement established under Article 38 once it enters into force. Contracting authorities from Member States, Union entities, and partner organisations selected by the Commission may accede and benefit from the framework, becoming 'participating entities' in the specific procurement procedures they elect to join. The Steering Committee may determine that the agreement takes the form of a contract of adhesion, setting transparent and non-discriminatory conditions for accession. Crucially, a contracting authority's participation is not conditional on its Member State's participation.

Detail

The Cloud and AI Development Act (CADA) introduces a novel mechanism to allow the European Commission to act as a central purchasing body on behalf of public-sector bodies across the Union. This framework is designed to harness collective purchasing power, reduce dependencies on third-country providers, and accelerate the adoption of sovereign cloud and AI technologies. Accessing this framework requires understanding the specific accession process outlined in Article 38 of the proposal.

The Accession Mechanism Under Article 38

The foundation of the CADA procurement framework is an agreement between the Commission and at least two Member States. This agreement lays down the practical arrangements for procurement activities carried out by the Commission, including the strategic oversight of the procurement agenda, the evaluation of tenders, and the applicable law.

Once this initial agreement enters into force, the door opens for broader participation. According to Article 38(6), "contracting authorities of participating Member States, Union entities and partner organisations selected by the Commission may accede to and benefit from it and shall be considered as participating entities in the procedures in which they elect to participate."

This provision establishes a flexible, opt-in model. Entities are not forced into every procurement procedure launched by the Commission. Instead, they accede to the overarching agreement and then choose which specific procurement activities to join. This allows for tailored participation based on the specific needs of the contracting authority or Union entity.

Contract of Adhesion

A critical feature of the accession process is the potential legal form of the agreement. Article 38(6) further states that "The Steering Committee may determine that the agreement shall take the form of a contract of adhesion."

A contract of adhesion is a standardised agreement where the terms are set by one party (in this case, the Steering Committee comprising the Commission and Member State representatives) and accepted by the other party (the acceding entity) without negotiation. This standardisation is intended to streamline the accession process, ensuring legal consistency and administrative efficiency across the Union. It prevents fragmentation that could arise if every new participant negotiated bespoke terms, thereby maintaining the integrity of the common procurement framework.

Conditions for Accession

While the Steering Committee may use a contract of adhesion, the conditions for joining must remain fair and objective. Article 38(8) mandates that the Steering Committee shall set "transparent and non-discriminatory conditions for contracting authorities of Member States to accede to the agreement, in particular as regards size, minimum amounts and other objective criteria."

This ensures that the framework remains accessible to a wide range of public-sector bodies, not just the largest national ministries. However, the Steering Committee retains the authority to set objective criteria, such as minimum purchase volumes or entity size, to ensure the administrative burden of managing the framework is justified by the scale of participation. The Committee also sets out rules for terminating participation if an entity fails to comply with its obligations.

Independence from Member State Participation

An important nuance in the accession process is the independence of individual contracting authorities from their Member State's overall participation. Article 38(7) clarifies that "The participation of a contracting authority of a Member State shall not be conditional on that Member State's participation."

This means that even if a Member State government has not signed the initial agreement, individual contracting authorities within that Member State (such as local municipalities, regional agencies, or specific public bodies) may still accede directly to the framework, provided they meet the conditions set by the Steering Committee. This decentralised approach maximises the potential reach of the common procurement platform and ensures that local needs can be met even if national-level political alignment is delayed.

Role of the Steering Committee

The Steering Committee, composed of the Commission and one representative from each participating Member State at the national level, plays a central role in managing accessions. Under Article 38(4), the Committee is responsible for strategic oversight, including proposing the strategic direction of the procurement agenda and approving the strategic direction of each procurement procedure before it is launched.

Furthermore, under Article 38(8), the Committee sets the rules and procedures governing the termination of participation for any contracting authority that fails to comply with its obligations. This ensures that the integrity of the procurement framework is maintained and that participating entities adhere to the agreed standards.

Ancillary Support Services

Accession to the agreement may also involve accepting ancillary support services. Article 38(10) allows the Steering Committee to make accession conditional on participating entities accepting one or more ancillary support services, as set out in Article 37. These services may include technical infrastructure, advice on procurement procedures, or invoicing services. This bundling of services ensures that entities have the necessary support to effectively utilise the common procurement platform and that the Commission can recover costs through fees levied on participating entities.

What this means for you

For public-sector procurement officers and legal advisors, the CADA procurement agreement offers a streamlined path to accessing high-quality, sovereign cloud and AI services. By acceding to the framework under Article 38, you can leverage the Commission's expertise and collective bargaining power without having to manage complex, large-scale tenders independently.

Key actions for procurement officers:

  1. Monitor the Agreement's Entry into Force: Watch for the official publication of the agreement between the Commission and the initial Member States. Once this occurs, the accession window opens.
  2. Review Accession Conditions: Carefully examine the conditions set by the Steering Committee under Article 38(8). Ensure your organisation meets any criteria regarding size or minimum purchase amounts.
  3. Evaluate Ancillary Services: Determine if your organisation would benefit from the ancillary support services outlined in Article 37. Be prepared to accept these services as a condition of accession if required by the Steering Committee.
  4. Prepare for Contract of Adhesion: Understand that you will likely be signing a standardised contract of adhesion. Review the terms carefully, but note that negotiation of individual clauses may not be possible.
  5. Plan Your Participation: Decide which procurement procedures you wish to join. Remember that accession to the agreement does not obligate you to participate in every tender launched by the Commission.

Common misconceptions

Misconception 1: All public-sector bodies are automatically part of the CADA procurement framework. Reality: Participation is voluntary. As stated in Article 38(6), entities "may accede to and benefit from it." There is no mandatory inclusion for all public-sector bodies.

Misconception 2: A Member State must sign the agreement for its local authorities to participate. Reality: Article 38(7) explicitly states that the participation of a contracting authority is not conditional on that Member State's participation. Local or regional authorities can accede independently.

Misconception 3: Accession allows for negotiation of individual terms. Reality: The Steering Committee may determine that the agreement takes the form of a contract of adhesion (Article 38(6)). This implies standardised terms that are not open to individual negotiation by acceding entities.

Misconception 4: Accession obligates entities to join all procurement procedures. Reality: Article 38(6) clarifies that acceding entities are considered participating entities "in the procedures in which they elect to participate." This allows for selective engagement based on specific needs.

Related

This is general information about a draft EU regulation, not legal advice.