Competition Law and Public Procurement

Abstract

The interaction between competition law and public procurement has been gaining visibility in recent years. This contribution claims that these two bodies of EU economic law mainly intersect at two points, or in two different dimensions. Firstly, they touch each other at the need to tackle anticompetitive practices (or bid rigging) in public tenders. This has attracted significant attention in terms of the enforcement priorities of competition authorities and led to recent regulatory developments in the 2014 EU public procurement Directives aimed at increasing the sanctions for bid riggers. Secondly, competition and public procurement cross again at the need to avoid publicly-created distortions of competition as a result of the exercise of buying power by the public sector, or the creation of regulatory barriers to access public procurement markets. This second intersection has been less explored and the development of regulatory solutions has been poor in both the fields of EU competition law and EU public procurement law. Moreover, the protection of the ‘public mission’ implicit in the public procurement activity led the CJEU to deform the concept of undertaking in a way that can distort EU antitrust enforcement beyond public procurement markets. This contribution assesses these issues and stresses the possibilities for a better integration of competition considerations in public procurement through the principle of competition embedded in the 2014 Directives.

Keywords: Public procurement, competition, bid rigging, buying power, undertaking, FENIN doctrine.

JEL Classification: K21, K23, H57