Truly Competitive Public Procurement as a Europe 2020 Lever:What Role for the Principle of Competition in Moderating Horizontal Policies?

European Public Law is an English language journal edited at the Institute of European Public Law at the Law School, Hull University. A forum for the discussion of issues in the development of public law, the journal traces the public law of the Member States as it is shaped by the law of the European Union as well as by the Council of Europe’s European Convention on Human Rights.

European Public Law provides a detailed analysis of constitutional and administrative law at a crucial stage of European integration and legal development. In its articles, authorities in the field investigate the extent to which the separate systems of public law in each Member State are, notwithstanding their distinct historical and cultural backgrounds, developing a European Public Law in tandem with the law of the European Union Treaty. The journal also examines the public law systems of new Member States.

Without neglecting the more traditional concerns of constitutional and administrative law, the journal explores the emerging constitution of the European Union and the interplay between law and politics. It is concerned with the identification, examination and control of public power as public and private become ever more intertwined. Public law is given a wide interpretation, including the structure of government, judicial review, the conduct of regulatory bodies, redress of grievance through ombudsmen and administrative bodies, protection of human rights and protection against discrimination, openness and transparency, fiscal and monetary policy, and the role of regulation in the contemporary state and the European Union.

In short, the journal embraces the operation and control of government and government agencies, regulation of economic and commercial affairs and relationships between the state and individuals.Public procurement is a pillar in the Europe 2020 strategy and one of the core policies derived from the Single Market Acts I and II. Majoritarian views advocate for an interventionist approach and instrumental utilization of procurement for the promotion of horizontal policies seen as deeply embedded in the Europe 2020 strategy. Conversely, public procurement can only make such a contribution by promoting the maximum degree of competition and being open to market-led innovation, instead of trying to mandate or ‘drive’ such innovation or ‘greening’ of procurement. This article takes the view that the principle of competition is the main tool in the post-2014 procurement toolkit and the moderating factor in the implementation of any horizontal (green, social, innovation) policies under the new rules. That is, that competition remains the main consideration in public procurement and that the pursuit any horizontal policies, including those aimed at delivering the Europe 2020 strategy, need to respect the requirements of undistorted competitive tendering. In other words, the article argues that competition considerations should take precedence over national non-economic policies whose effects impair or jeopardize the goals set at EU level. To substantiate that claim, the article focuses on the interpretation of Article 18(1) of Directive 2014/24, which consolidates the principle of competition, and proposes a strict proportionality test applicable to the promotion of horizontal procurement policies where such ‘strategic’ or ‘smart’ use of public procurement can generate market distortions.