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:
In its 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 State aid).
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.