A conversation on horizontal policies in public procurement

I was kindly invited to talk about centralisation and public procurement at the Law School of the University of Lisbon last week by Prof. Miguel A. Raimundo. At the event, Prof. Nuno Cunha Rodrigues provided an initial overview on the opportunities that centralisation can create for the pursuit of horizontal or secondary policies. Based on my general views (here), I opposed the use of centralisation to achieve secondary policy goals, for the standard economic reasons, as well as for the issue of the democratic deficit that would ensue from allowing centralised purchasing bodies to act as market regulators.

Prof. Cunha Rodrigues has followed up on our discussion via email and has provided me with some detailed remarks (plus a short rebuttal/further thoughts I am adding at the end)(*). With his consent, I am posting them below (in black), accompanied by my own reaction to his points (in blue). I hope this "virtual" conversation on horizontal policies in procurement will be of interest. By all means, please feel free to comment.

Dear Albert:

As I told you personally, I´m a great admirer of your work which I´ve been following through your several publications and your blog. I saw your last post and I just wanted to make some comments on it.

Far too kind.

As a matter a fact, I don´t have a close view on secondary or horizontal policies. It´s still to be proved their efficiency knowing that State has several other tools in order to promote the same goals associated to secondary policies, like the use of sectorial legislation, taxation or subsidies.

In my view, this should suffice to at least refrain from their expansion, particularly under centralised procurement.

Nevertheless, I think we shouldn`t regret the importance of the (possible) use of public procurement to pursue (some) secondary policies like social policies. Said this, I just want to make some telegraphic notes:

i) It´s true that the pursue of secondary policies through public procurement does not have (enough) democratic legitimacy. Still, knowing that (most) of the central purchasing bodies in Europe directly depend on central government, we can say that centralisation of public procurement is the (ideal) way to develop secondary policies because governments can directly control those bodies and the policies they pursue (in Portugal, central government can send direct instructions to the central purchasing body). The issue of democratic legitimacy is one that can provoke a huge discussion namely in the field of EU law (and the powers of the European commission…);

I strongly disagree with this approach. The issue is quite significant because the establishment of higher requirements (green, social or otherwise) in procurement than in general consumption of goods in services shows a clear regulatory/legislative double-standard that can hardly be monitored or resolved through governmental control of the central purchasing body. There is no good reason why the public sector cannot purchase goods and services legally marketed to private buyers. If the government/legislator considers that a given product or service should not be consumed for objective reasons, it needs to legislate in that way. Otherwise, this approach does not only lead to a clear democratic deficit, but also to a cross-subsidy that can go both in favour of or against the public purse / consumer purse.

ii) Public bodies are subjected to the legality principle. As so, and knowing that most European constitutions (and the TFEU) acknowledge the precaution principle in environmental issues and also the equality principle, one can recognise that secondary policies (namely social policies) should be consider by public bodies on the decision of what to buy;

Yes, but only expressed and articulated (by hard law instruments) environmental and social rules. Again, as above, there is no reason why procurement policy needs to be more cautious in environmental or social terms than the explicit and legislated environmental and social policies themselves.

iii) Your last post mentions some articles that stress that set-asides are a bad ideia. Some of those articles come from the 80’s and the 90’s, knowing that (modern) secondary policies (like the one connected with environmental and social policies) appeared mainly last decade (after Concordia Bus case, although I’m aware of previous Du Pont de Nemours case and others) and that some authors have recognised their importance in the recent past, like Arrowsmith, Kunzlik and MacCrudden (despite the fact that some may disagree with these policies). After the Concordia Bus case, the 2004 and 2014 directives, the national experiences and, mainly, the ECJ cases (like Concordia Bus, Wienstrom and Ruffert) it became clear that there was a new role to public procurement in this field;

In my view there is no new role (maybe some more regulatory space, but no new role) for secondary policies in the current rules and, in economic terms, the situation is exactly the same assessed under the studies I refer to. I agree that new empirical studies would be really useful in trying to price or measure the distortions created in EU markets at present, but I would stress that the value of proper empirical work is that it allows us to test economic theories. And, as far as I can read, there is no question that secondary/horizontal policies create economic inefficiency. The burden of proof, in empirical terms, lies on the other side.

iv) The economic crises that some European countries have been facing showed the importance of public procurement as an economic policy tool, like we saw mainly between 2009 and 2010 when the European Commission inducted member states to spend more public money is order to stabilise economy;

I partially agree, in that there is an economic role to be plaid by public procurement as a macroeconomic policy. However, that is a decision on the level of expenditure and, possibly, on areas of priority. However, that has nothing to do with what should be bought or how. I develop these issues distinguishing the different economic roles of procurement in my book and I stick to that [A Sanchez Graells, Public Procurement and the EU Competition Rules, 2nd edn (Oxford, Hart, 2015) 52-56].

v) In fact, market failures must be covered by state and they can be through multiple ways (depending on how efficient they prove to be), namely by regulation through contract (but sometimes, for sure, not directly through public procurement but through other instruments such as sectorial legislation, taxes or subsidies).

Not sure about this point. However, market failures are not the only ones that concern procurement, which should also be wary of regulatory or government failures. Capture or gold-plating by the central purchasing body is at least equally worrying.

vi) In the EU law, secondary policies appeared in a shy way with the 2004 directives and they are one of the main causes of the 2014 directives so we can’t deny the will of the European legislator in this matter;

Yes, but that does not mean we need to acritically accept that whatever the legislator wants to do is in the society's best interest. There are too many theoretical and historical objections to list them here.

vii) If we exclude the use of secondary policies, we are comparing, at the end, public procurement with private procurement. Still, public procurement must follow public interest and this one is not always connected with an idea of the lowest price or efficiency (or an idea of simplification of public procurement).

I disagree. We are just disentangling the regulatory/public power of deciding what to buy from the economic mechanism of procurement, which should be concerned with how to buy that in the most efficient way.

Nevertheless, even the criteria of the lowest price can be used to promote secondary policies (e.g. through technical specifications or the use of eco-labels) and, on the other hand, by choosing the most economic advantageous proposal, public bodies can promote secondary policies even without a clear legal base, so every guidance we can give in this area will be helpful;

Guidance may or may not be helpful. I agree that secondary policies could permeate different parts of the procurement cycle. However, the rules on technical specifications are much more stringent than those on award criteria in terms of accepting equivalent solutions and limiting formal restrictions to participation. Hence, I would much rather see green procurement limited to technical specifications and social clauses to contract compliance requirements (both of which have been limited in Dutch coffee and Bundesdruckerei) than in award criteria, where the scenario is much less streamlined.

viii) We know that, at the end, secondary policies can determine that prices get higher for public bodies. Still, the goal of public procurement is not only to assure value for money but also to promote public interest and this one can allow public bodies to buy in a more expensive way in order to promote, v.g., social policies.

This is very contentious. I completely disagree. Arrowsmith (in mild terms) and Kunzlik (in more enthusiastic terms) may agree with you. Here is a summary of the academic "conversation" we have been having for a while.

ix) Public interest (and European interest) has raised environmental policy to one transversal European policy (and the ECJ has said that) that must be included in public procurement concerns (and it was not in the past). The ECJ has said the same about social policies, namely in the Viking case;

That sounds like a bit of a simplification to me, particularly because the CJEU has always been stressing the need to comply with enacted secondary rules, rather than with policies. In any case, the opposition to secondary policies is not to be extended to procuring goods or services in compliance with the applicable legislation, which is an altogether different discussion.

x) I´m aware that the use of secondary policies may cause distortions in the market (and in competition). But public procurement is not concerned just with the competition principle (knowing that this one has been raising its importance after FENIN-SELEX ECJ cases and the new directives). Here, proportionality principle may help to balance competition principle with the pursue of secondary policies connected with the public interest. In some cases, it might be necessary to exclude some competitors that act in the same relevant market (e.g. State can exclude competitors that sell cars that pollute excessively or sellers of inefficient lamps) in order to promote secondary policies, namely promoting a change in technology that its consider to be needed according to the public interest.

I disagree. If the State does not want excessively polluting cars, it needs to legislate against them. If it is legal to sell those cars, there is no justification for an exclusion of the offeror from public procurement. Secondary policies cannot be a fix for the inability to legislate appropriately.

xi) In the field of secondary policies, the use of soft law is a way to, step by step, get to hard law and sometimes it has a fundamental role in order to allow the operators to understand the functioning of hard law. For example, competition law wouldn`t really be comprehensive without soft law (knowing that, in most of the times, it follows ECJ case law) even if, sometimes, the road gets away from soft law (e.g. what happens with the relevant market definition and the modern economic approach to merger control). We can also see the same use of soft law in tax law and I think we shouldn`t deny it`s value in the interpretation and development of public procurement law in the future.

If we don´t have soft law, the discretionary power of public bodies would be even bigger knowing that the use of secondary policies is allowed in the 2014 directives in general terms. As so, soft law can have a role in order to make more clear the use of secondary policies (and the situations where they can´t be used) although we are aware of the risks concerning the frontier between hard law and soft law (that were already raised by the ECJ);

I disagree with this, particularly in the competition field. Soft law is an asymmetrical lye we tell ourselves simply to allow regulation to be developed below the radar screens. My more developed views are available at A Sanchez-Graells, Soft Law and the Private Enforcement of the EU Competition Rules (July 2010)].

xii) The use of social policies through public procurement was, in some countries, a case of success in the past (v.g. USA; UK; Canada; South Africa; Malasia) so we shouldn`t throw the possible use of it immediately away;

I remain to be presented with any evidence about the success of any of those policies in any of those jurisdictions.

Like I said, this is just a short reaction to your post, without quoting any article or book to support me, that I’m sending you with friendship and admiration. I really don`t have a close view on this issue but I think (and I agree with what you say on your blog) that, concerning secondary policies, we won`t go back after 2014 directives. As so, operators will need guidance in this matter in the future.

Well, it is certainly an area where we will continue holding academic debates. :)

Postscript: Some further thoughts by Prof. Cunha Rodrigues

i) You say that secondary policies, at the end, can produce "a cross-subsidy that can go both in favour of or against the public purse / consumer purse." I think that this idea is stick to one of economic efficiency that is not necessarily linked to public interest. Sometimes, it`s necessary to pay more (public purse / consumer purse) in order to get a superior social outcome or to have a change in technology so cross-subsidy can have a positive effect to tax payer in a near future (namely when we prove that the outcome is more efficient if compared with other public tools).

Promoting social policies buying to companies that employ handicapped persons may not satisfy economic efficiency but it will meet public interest and satisfy public procurement goals. Another example: every time technology moves forward, prices get higher at the beginning so State, through public procurement, can have a role in helping to develop that technology and getting prices to be cheaper, namely by buying those products. That happened, in several countries, for essence when some public bodies decide to buy electric cars (and, in those cases, I think that competition would be more distorted if we exclude from the market inefficient cars through hard law rather than excluding them through public procurement).

ii) You mentioned that “secondary policies cannot be a fix for the inability to legislate appropriately”. I think that this idea, at the end, would translate to hard law the decision to exclude some (inefficient) products from the market what might agravate the effect of distorting competition because: a) it wouldn´t allow private parties to decide what to buy; b) it would exclude private producers from the market, causing an even bigger distortion of competition than the one (eventually) caused by using secondary policies through public procurement.

This is somehow an idea similar to what happens in competition law where, in some cases, R&D can justify antitrust behavior (along with others conditions, for sure, according to article 101.º, n.º 3 of the TFEU). In both cases, one can say that competition principle or an idea of economic efficiency doesn`t necessary prevail. Naturally this example can’t be understood in cases where public procurement comes along with monopsony power (and I fully agree with you that the possible application of article 102.º of the TFUE can be wider, in the future, even knowing FENIN and SELEX cases, because of the role that central purchasing bodies can and will have under 2014 directives).

My approach to public procurement and competition: A rebuttal to Prof Arrowsmith (2012) and Prof Kunzlik (2013)

I am at the latest stages of updating my monograph Public Procurement and the EU Competition Rules (Oxford, Hart), which 2nd edn will be published by Hart again in 2015. Preparing the revision of the book, and seeing that the 1st edn raised some criticism by very notable procurement scholars, I thought that it would be good to write an introduction that provides some context. The following is from this introduction and basically amounts to a rebuttal of the arguments developed by Professor Sue Arrowsmith and Professor Peter Kunzlik to my 1st edn, both of them published in the Cambridge Yearbook of European legal studies. Hopefully, this rebuttal will contribute to a transparent academic debate about public procurement--and it will persuade readers to look for the new edition as soon as it is available Needless to say, further comments from Arrowsmith or Kunzlik would be enriching.
* * *
From an academic perspective, it has been remarkable to see how the first edition of this book has sparked a rather intense, estimulating and fruitful debate between Professor Sue Arrowsmith, Professor Peter Kunzlik and myself about the ultimate goal of the EU public procurement rules. More specifically, we seem to hold very different views about the meaning of ‘competition’ and the ensuing economic efficiency, as well as their place in the EU procurement Directives. I think that the readers of this second edition will benefit from a short summary of this academic debate, since it fundamentally underpins the work in this book.
(1) Professor Sue Arrowsmith’s contention that the pro-competitive framework on which this book is based constitutes a stretched and distorted reading of the competition elements included in the EU public procurement Directives and their interpreting case law.

Professor Sue Arrowsmith criticises my competition-oriented approach in a section of her article ‘The Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies’ [(2011-2012) 14 Cambridge Yearbook of European legal studies 1–47].
She argues for her own interpretation of the goal of the EU rules and tries to limit their scope in search for some ‘regulatory space’ for Member States. This is part of a larger endeavour of hers, likely to carry on in the written proceedings of her coming conference on “Rethinking ‘economic’ derogations and justifications under the EU’s free movement rules” within the Current Legal Problems 2014-15 series.  
In her 2012 paper, Professor Arrowsmith considered that my book espouses ‘a broad notion of competition as a tool for replicating the private sector market’ in the public procurement setting. She considers that such point of departure should be rejected, as it is a misunderstanding of the concept of competition embedded in the pre-2014 public procurement Directives, which she considers limited to ‘removing discrimination and barriers to entry into the competitive market, and implementation of the competitive procedures for transparency reasons’. She adopted a rather positivistic approach and stressed that ‘[i]t seems significant that while non-discrimination, transparency and equal treatment were written into the directives as general principles, [its] ‘competition’ provisions are confined to specific areas’. She eventually concluded that ‘a broad interpretation of the directives as being concerned with replicating market competition is incorrect. While apparently supported by some statements in the jurisprudence these are based on misunderstanding and such a broad interpretation, it is submitted, represents unwarranted judicial reorientation of the directives’ rules’ (all quotes from pages 25–34). My reaction to the line of criticism voiced by Professor Arrowsmith is as follows.

Firstly, I am not sure that my approach can be conceptualised as an attempt to make the directives ‘replicate market competition’. I would submit that it is rather an attempt to properly integrate them within an environment of market competition. Or, put differently, this is an attempt to avoid public procurement rules from distorting or restricting the competition that already takes place in the market, or from preventing the competition that would emerge but for the constraints imposed by the procurement rules. 

Secondly, as to the point that this approach is flawed and based on misunderstandings, taking exclusively into account the pre-2014 materials, I would suggest that Professor Arrowsmith’s views do not lie on the strongest economic foundations. Professor Arrowsmith basically comes to the view that EU public procurement rules are concerned with preventing barriers to trade within the internal market (by means of transparency and non-discrimination), but that this has nothing to do with economic efficiency derived from undistorted competition because the ultimate objective of the rules (beyond internal market integration per se) belongs to the domestic regulatory space of the Member States. However, economic efficiency must, by necessity, derive from the completion of the internal market if that results in stronger competitive pressures for economic operators.
Furthermore, as the Court of Justice of the EU has very recently stressed in an interpretation of the 2004 public procurement Directives, the ultimate objective of the internal market rules and the EU public procurement Directives is to allow all the economic operators involved to achieve economic efficiency derived from competition strategies unaffected by restrictive procurement decisions—in particular, even if that is attained by deriving a competitive advantage from the differences between the respective rates of pay applicable in different Member States (Judgment in Bundesdruckerei, C-549/13, EU:C:2014:2235, 34). It seems very clear that EU public procurement rules, just as everywhere else, are concerned with economic efficiency. Hence, limited doubt can seriously be cast on the fundamental proposition that the development of the internal market, including public procurement rules, and its supporting system of competition rules aim at generating economic efficiency by relying on (economic) market mechanisms.

Thirdly, and from a more legalistic perspective, the development of the EU public procurement rules in the revised 2014 Directives also disprove the point that the general principle of competition does not exist and that competition considerations are limited or confined to specific areas. As discussed at length in Chapter 5 of this second edition, article 18(1) of Directive 2014/24 now clearly consolidates the principle of competition amongst the general principles of the system. It is true that the wording of this provision could have been clearer and that there are significant interpretative questions that need being addressed, but it should be acknowledged that by clearly stating that ‘The design of the procurement shall not be made with the intention … of artificially narrowing competition [and that]competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators’, Directive 2014/24 stresses the relevance of competition considerations across the board and provides an interpretative tool that is likely to further develop the pro-competitive orientation of the system of EU public procurement rules in the coming years. In my view, this is a truly welcome development, and not only because it clearly supports the ideas and approach developed in the first edition of this book and now further refined in this second edition. As has always been my conviction, a competition-oriented public procurement system is necessary for the public sector to properly carry out their missions with the minimum distortion of private sector activities and, ultimately, with the minimum loss of social welfare. 

In the 2005 second edition of her magnificent treatise The Law of Public and Utilities Procurement, 2nd edn (London, Sweet and Maxwell, 2005) 432, Professor Arrowsmith had indicated that ‘competition might be developed as a general principle with the same status as transparency and equal treatment. The very broad conception of competition endorsed by the Advocate General [Stix-Hackl in case C-247/02 Sintesi] was criticised … it was suggested that the directives are merely concerned with removing restrictions on participation in competitions held in public markets. However, a general principle of competition could properly be developed to support this latter objective of removing restrictions on participation’. Consequently, even if back in 2005 she already stressed the same points she later emphasised in the 2012 paper regarding transparency and non-discrimination, she seemed to be open to a development such as the ‘creation’ of a principle of competition like the one now included in article 18(1) of Directive 2014/24.
However, when she now reads that article in 2014, she considers that it ‘appears to be simply a manifestation of the more general equal treatment principle, as designing any aspect of the procurement for this reason [ie, ‘unduly favouring or disadvantaging certain economic operators’] rather than based on the needs and preferences in the project would clearly infringe that principle’ (The Law of Public and Utilities Procurement. Regulation in the EU and the UK, Vol. 1, 3rd edn (London, Sweet & Maxwell, 2014) 631). Professor Arrowsmith has overlooked the first part of the clause of article 18(1) of Directive 2014/24, where contrary to what she concluded regarding the 2004 rules, it is at least clear that competition is ‘elevated’ to the same altar of the general principles of the EU public procurement system as equality, non-discrimination, transparency and proportionality.

Overall, there is very little left to support Professor Arrowsmith’s view that the pro-competitive approach advocated for in this book is based on misunderstanding. On the contrary, I would claim that the arguments presented in the first edition paved the way for a stronger recognition of the existence of the principle of competition embedded in the EU public procurement Directives, which has now culminated in its explicit consolidation in article 18(1) of Directive 2014/24. That being said, this second edition will provide the reader with arguments why this is a development that still requires further fine-tuning and optimisation. And this is an endeavour to which I plan to continue dedicating my academic efforts.
(2) Professor Peter Kunzlik’s argument that this book ‘as well as being a scholarly analysis within the neoliberal normative frame, is a manifesto for the neoliberalisation of public procurement regulation in the EU’ and is ‘the most systematic statement’ of the argument that ‘the dominating aim of the EU procurement directives is to advance competition in the sense of a competition doctrine intended only to achieve efficiency’.

The further debate with Professor Peter Kunzlik was equally refreshing. Indeed, he thought that Arrowsmith had fallen short from exhausting the criticism of the first edition of this book and further expanded it in his article ‘Neoliberalism and the European Public Procurement Regime’ [(2012-2013) 15 Cambridge yearbook of European legal studies 283, 312–56]. Interestingly, Kunzlik took a completely different approach and focussed his criticism on the ideology that he imputes to the book (and myself, by extension). I must say that I am not completely dissatisfied by the label of ‘neoliberal manifesto’ and that, as Kunzlik recognises, this is something I disclose rather openly in the book when I warn the reader that 'this is a ‘free-market type’ study of competition in the public procurement environment'. However, when it comes to the details of his criticism, I think that Kunzlik fails to provide a convincing argument for the following reasons.

Kunzlik starts off with a very lengthy discussion of Neoliberalism to set the tone for his criticism, and then goes on to acknowledge Arrowsmith’s position. Taking issue with both her and my positions, Kunzlik indicates that he aims to ‘offer a third approach to the relevance of competition and value for money in EU public procurement regulation’. He considers that ‘the concept of ‘competition’ to which the public procurement directives relate is not the ‘efficiency’ concept suggested by [Sanchez] Graells, but rather a ‘structure of competition’ concept that is concerned to protect the structure of the market and equality of competitive opportunity of traders in the interests of customers, competitors and ultimate consumers. It is a concept that in the public procurement context simply requires that the law must ensure equality of opportunity for potential tenderers and a structure of competition for public contracts that allows sufficient opportunities for EU-wide competition, thereby ensuring the integrity of the internal market—the very same objectives that are asserted by Arrowsmith’ (quotes from pages 327 and 335). Kunzlik was trying to square a circle between Arrowsmith’s and my position. However, beyond the dismissive way in which he uses the terms efficiency and neoliberalism, there are no such differences in the implications of his and my arguments. Indeed, I do not see any third view in his proposal.

I find it even harder to understand how his argument deviates from the ones presented in this book when he stresses that ‘the public procurement directives do have a competition objective. However, … the objective in question is not to achieve ‘efficiency’ in the sense contended by [Sanchez] Graells, but to ensure a structure of competition for public contracts to be opened up to EU-wide competition on the basis of equality of competitive opportunity’ (340). Tertium non datur. I struggle to understand how equality of competitive opportunity on an EU-wide level does not amount to (facilitating) economic efficiency. Consequently, I hope the reader will agree with me in that there is no ‘third view’ and that, once it is accepted (as he does) that the public procurement directives do have a competition objective, the argument is over—regardless of the ideological content one tries to give to it.

Overall, then, I think that the academic debate (as I understand it) strongly supports the approach taken in this book, where these and other criticisms are addressed in further detail. There is nothing left for me to say. It is now for you, dear reader, to decide.

With a little help from my friends: AG Jääskinen supports flexible interpretation of rules on reliance on third party capabilities in #publicprocurement

In his Opinion of 28 February 2013 in case C‑94/12 Raggruppamento Temporaneo Imprese (‘RTI’), Advocate General Jääskinen has clearly indicated that the rules of arts 47(2) and 48(3) of Directive 2004/18 preclude national legislation which prohibits, except in special circumstances, reliance on the capacities of more than one auxiliary undertaking in order to fulfill the selection criteria concerning the economic and financial standing and/or technical and/or professional ability of an economic operator tendering for a contract as main contractor.

The approach followed by the AG must be welcome and, in my opinion, his teleological interpretation in view of the 'ultimate' objectives of the Directives deserves particular praise:
31. This argument is further supported by analysis of the objectives of Articles 47(2) and 48(3) of Directive 2004/18. According to the Court, one of the primary objectives of the public procurement rules of the European Union is to attain the widest possible opening‑up to competition, and that it is the concern of European Union law to ensure the widest possible participation by tenderers in a call for tenders.
32. The objective of widest possible opening‑up to competition is regarded not only from the interest in the free movement of goods and services, but also in regard to the interest of contracting authorities, who will thus have greater choice as to the most advantageous tender. Exclusion of tenderers based on the number of other entities participating in the execution of the contract such as allowing only one auxiliary undertaking per qualitative criteria category does not allow for a case by case evaluation, thus actually reducing the choices of the contracting authority and affecting effective competition.
33. Another objective of the public procurement rules is to open up the public procurement market for all economic operators, regardless of their size. The inclusion of small and medium‑sized enterprises (SMEs) is especially to be encouraged as SMEs are considered to form the backbone of European Union economy. The chances of SMEs to participate in tendering procedures and to be awarded public works contracts are hindered, among other factors, by the size of the contracts. Because of this, the possibility for bidders to participate in groups relying on the capacities of auxiliary undertakings is particularly important in facilitating the access to markets of SMEs. (AG in C-94/12 at paras 31 to 33, emphasis added).
These considerations rely on a conception of public procurement as a 'competition-enhancing' tool, which I personally very much favor [A Sanchez Graells, Public Procurement and the EU Competition Rules, Oxford: Hart Publishing, 2011]. However, relevant commentators such as Professor Arrowsmith continue to oppose this approach [S Arrowsmith, "The Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies", in C. Barnard, M. Gehring and I. Solanke (eds.), Cambridge Yearbook of European Legal Studies (Hart Publishing, Oxford, 2011-2012), Vol. 14, pp.1-48]. Therefore, the doctrinal debate that the RTI Opinion in brings to the spotlight deserves some attention.

I think that it will be interesting to see if the CJEU expressly adopts the reasoning of AG Jääskinen in the final Judgment in the RTI case. If so, I think that the path towards the express and full recognition of the principle of competition in public procurement will continue to be paved and that there will be opportunities for further developments in the right direction.