Some Reflections on the 'Artificial Narrowing of Competition' as a Check on Executive Discretion in Public Procurement
To be published in S Bogojević, X Groussot & J Hettne (eds), Discretion in EU Public Procurement Law, IECL Series (Hart, Forthcoming)
19 Pages Posted: 20 Feb 2018 Last revised: 29 May 2018
Date Written: February 17, 2018
In this paper, I go beyond the previous general discussion on the place for and implications of a competition goal or principle within the EU public procurement architecture and aim to operationalise the ‘competition-based constraints’ on the exercise of executive discretion that derive from the prohibition to ‘artificially narrow down competition’. I do so in relation to the exercise of discretion for the inclusion of social, green and human rights clauses in tender documentation. The first part of the paper revisits the case law of the Court of Justice of the European Union on the inclusion of environmental, social and labour requirements in procurement procedures, and fleshes out the ways in which competition considerations have underpinned the Court’s assessment of the exercise of executive discretion in the design of tender procedures. The second part proposes a substantive balancing test between, on the one hand, these ‘competition-based constraints’ and, on the other hand, the needs of ‘responsible procurement’ derived from the mandate to ensure environmental, social and labour compliance. The third part takes the alternative approach of a test of procedural traceability and considers the documentary obligations that contracting authorities need to discharge in relation with the exercise of executive discretion to assess whether they could be used to create a procedural safe harbour or counter-presumption. I conclude reflecting on the relative advantages and disadvantages of the proposed substantive and procedural tests in the context of potential future litigation.
Keywords: Public procurement, executive discretion, competition-based constraints, balancing test, procedural traceability, litigation
JEL Classification: H57, K23, K31, K32, K38, K42
Suggested Citation: Suggested Citation