I have just uploaded on SSRN a new working paper where I try to operationalise a substantive and procedural test for the enforcement of the principle of competition enshrined in Article 18(1) of Directive 2014/24/EU. The paper is still very much work in progress and I will need to revise it before final publication in an edited collection, so any feedback or comments would be most welcome.
The abstract of the paper is as follows:
In this paper, I go beyond prior general discussion on the place for and implications of a competition goal or principle within the EU public procurement architecture and aim to operationalise the 'competition-based constraints' on the exercise of executive discretion that derive from the prohibition to 'artificially narrow down competition'. I do so in relation to the exercise of discretion for the inclusion of social, green and human rights clauses in tender documentation. The first part of the paper revisits the case law of the Court of Justice of the European Union on the inclusion of environmental, social and labour requirements in procurement procedures, and fleshes out the ways in which competition considerations have underpinned the Court's assessment of the exercise of executive discretion in the design of tender procedures. The second part proposes a presumption-based substantive balancing test between, on the one hand, these 'competition-based constraints' and, on the other hand, the needs of 'responsible procurement' derived from the mandate to ensure environmental, social and labour compliance. The third part takes the alternative approach of a test of procedural traceability and considers the documentary obligations that contracting authorities need to discharge in relation with the exercise of executive discretion to propose the creation of a safe harbour to modulate the operation of the substantive presumption. I conclude reflecting on the desirability of the proposed tests in the context of future litigation.
The full citation of the paper is A Sanchez-Graells, 'Some Reflections on the 'Artificial Narrowing of Competition' as a Check on Executive Discretion in Public Procurement', in S Bogojević, X Groussot & J Hettne (eds), Discretion in EU Public Procurement Law, IECL Series (Hart, forthcoming). Available at SSRN: https://ssrn.com/abstract=3125304.