I have uploaded a new paper on SSRN: 'A Deformed Principle of Competition? – The Subjective Drafting of
Article 18(1) of Directive 2014/24', forthcoming in GS Ølykke & A Sanchez-Graells (eds), Reformation or Deformation of the
EU Public Procurement Rules in 2014 (Cheltenham, Edward Elgar
Publishing, 2016). Available at SSRN: http://ssrn.com/abstract=2642971.
The paper focuses on the EU legislative process that led to the consolidation of the principle of competition in Article 18(1) of Directive 2014/24, as well as the modifications that its drafting suffered as a consequence of the negotiations between the Member States at the Council and the further amendment proposals by the European Parliament in preparation of the trialogue with the European Commission. As detailed in the abstract:
2011 Proposal for a new Directive on public procurement, the European
Commission included the consolidation of the general principles of
procurement. For the first time, in addition to the ‘classic’ triad of
equality, non-discrimination and transparency, it expressly included the
principle of competition amongst such general principles. In the 2011
Proposal, the Commission referred to an objective concept of restriction
of competition, which would be proscribed by the future Directive.
Successive negotiations allowed the Council and the European Parliament
to alter the drafting of this provision. The final text in Article 18(1)
of the 2014 Directive thus contains a different version of the
principle of competition. In this final version, both a subjective
element and a presumption of distortion of competition are included,
which could diminish the effectiveness of the principle. Moreover, both
deviations from the initial proposal by the Commission are difficult to
reconcile with the existing case law of the Court of Justice of the
European Union (CJEU).
This paper traces the legislative
evolution of the principle of competition in public procurement and
looks for explanations for the alteration of its initial drafting.
Looking to the future, it considers whether the CJEU will stand by the
new drafting and limit the principle as desired by the Council and the
Parliament or, conversely, it will promote a functional approach along
the lines of the objective conception initially proposed by the
Commission. This paper proposes that the second option is preferable
and, in any case, more likely in view of the CJEU's treatment of similar
issues in other areas of EU public procurement law (such as the
classical anti-circumvention provisions), as well as EU economic law
more generally (and, remarkably, competition law and the granting of
The paper is part of a larger project where Dr Grith Skovgaard Ølykke and myself will be editing a book that explores broader issues of the EU legislative process and the interaction of the EU Institutions involved, using the 2011-2014 EU public procurement reform as a case study. We are thrilled to have a long list of excellent young and raising scholars contributing to the book. Stay tuned for further developments.