The application of competition rules to public procurement in the EU : a critical analysis of judicial and legislative developments

Abstract

The objective of this dissertation is to analyse the increasingly recognised overlap between EU Competition Law and EU Public Procurement Law from a pro-competition perspective. Although both of these fields of law constitute important pillars of the internal market and drive economic integration within the Union, they are classically held to be separate and distinct, differing in objective and scope. Over time, however, the divergence has been increasingly blurred. This dissertation assesses the application of competition law rules in three different aspects of EU public procurement regulation. Firstly, it notes the positive integration of competition in combating bid-rigging in the procurement system, secondly, the problems relating to the application of core competition prohibitions to public purchasing as a result of the deformation of the concept of undertaking and lastly, appreciates the legislative development made in the recent 2014 revision of the EU procurement directives, specifically Directive 2014/24/EU. It is contended that the promotion and recognition of competition law rules within public procurement is a positive regulatory development in light of the principles and freedoms ensured by the TFEU and, more generally, the economic objective of the European Union. This competition oriented perspective of public procurement, based on the insightful findings of Dr Albert Sanchez Graells, aims to pinpoint the restrictive and distorting effects of public procurement. This dissertation concludes that public procurement regulation is founded on the principle of competition. As a result, competition should be respected and ensured at all stages of the tendering process. Issues which require close attention are addressed and recommendations for better consolidation of competition law rules within the procurement system are asserted.