The Limits of General Principles: A Procurement Case Study

Abstract

Using public procurement as a case study, this article considers how the European Court of Justice’s use of general principles to supplement existing secondary law obligations affects Member States in their design of national regulatory systems. It finds that the EU legislature and the Court appear to be pushing for different levels of market integration, to the displeasure of the Member States evaluated in this case study. Moreover, the Court’s use of the general principles as a regulatory approach has left the Member States with substantial legal uncertainty that they do not seem to be able to eliminate with national legislation or guidance. The article concludes that further revision to secondary legislation in this area will not result in a simplified EU public procurement policy unless the Court’s case law is somehow addressed in such a revision.