The Continuing Relevance of the General Principles of EU Public Procurement Law after the Adoption of the 2014 Concessions Directive

Abstract

This paper aims to offer some reflections on the legal relevance of general principles of EU public procurement law after the adoption of the 2014 package of substantive Directives on public procurement. It focusses on the field of concession contracts because one of the explicit justifications for the adoption of Directive 2014/23 was to achieve a “uniform application of the principles of the TFEU across all Member States and the elimination of discrepancies in the understanding of those principles … at Union level in order to eliminate persisting distortions of the internal market”. The paper claims that Directive 2014/23 has failed to deliver on three grounds. Firstly, because it has not actually created any relevant substantive harmonisation of tender requirements for concession contracts that fall within its scope of application. Secondly, because it cannot limit the CJEU’s extension of obligations derived from the same general principles beyond its scope of application. And, thirdly, because it fails to acknowledge the full-range of general principles of EU public procurement law and, in particular, the principle of competition — which creates a risk of internal inconsistency with the rest of the substantive Directives in the 2014 Procurement Package.

Keywords: Public procurement, general principles, concessions, scope of application, modernisation, consistency, contracts not covered, Comune di Ancona, CJEU.

JEL Classification: H57, K23, K40