In a recent paper, Robert Moldén offers an interesting overview of a wide array of issues concerned with the intersection of public procurement and competition law from a Swedish perspective (ie, in their treatment by Swedish Courts).**
The paper is only available on a subscription basis (http://www.ert.se/content.asp?id=60#) but it offers an interesting summary of several cases where the Swedish courts have attempted an interpretation of the principle of competition that may be relevant (and influential) for the future construction of the soon to be enacted Article 15 of the new EU public sector procurement Directive.
It is interesting to note, for example, the Judgment of the Stockholm Administrative Court of Appeal of 2 February 2011 in case 6528-10m where it clearly spelled out that
The main purpose of EU public procurement law is freedom of movement for goods and services and that the area shall be opened for non-distorted competition. Both [the Swedish Public Procurement Act] and the EU Directives aim at public procurement proceedings to be conducted by utilizing existing competition in the best way. The provisions aim both at making use of competition in a given procurement proceeding and developing effective competition (para 4, Moldén's translation at p. 598 of his paper).
Robert Moldén extensively quotes some of my thoughts in Public Procurement and the EU Competition Rules (Oxford, Hart Publishing, 2011), particularly as the principle of competition in procurement is concerned--which obviously implies that we see things in a very similar manner. Indeed, I fully subscribe his submission that
The competition principle embodied in the Classical Sector Directive imposes an active obligation to ensure that the way they conduct public procurement proceedings is pro-competitive and not anti-competitive. Swedish administrative courts should therefore not treat the Directive's pro-competition provisions as soft law but as hard law, in the sense that infringements of the principle of competition should be considered as infringements of the Swedish Public Procurement Act, in the same way as infringements of, e.g. the principles of proportionality and equality (p. 602).
Despite such commonality of views, I do not think it is biased for me to recommend reading his piece, particularly to any academic or practitioner interested in trying to anticipate the implications of the abovementioned (emerging) general principle of EU public procurement law: ie the principle of competition, as formulated in Article 15 of the new Directive
Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner. The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement was made with the intention of unduly favouring or disadvantaging certain economic operators.