Competition Law Against Public Restraints in the Public Procurement Field: Importing Competition Considerations into the EU Public Procurement Directives

Abstract

Procurement activities conducted by the public buyer are very relevant for the proper working of the markets. Hence, the market activities of the public buyer should comply with the requirements of competition law - ie should not restrict or distort competitive outcomes derived from free market forces. However, the enforcement of EU competition rules against the public buyer is severely limited by the case law of the ECJ. This limitation restricts the development of an efficient public procurement system that guarantees value for money to the public buyer and, more generally, increased social welfare. Nonetheless, an alternative regulatory instrument - ie the principle of competition embedded in the EU Directives on public procurement - can be used as a solid legal basis to cover this gap in EU competition law. The development of a more competition-oriented public procurement system on the basis of the principle of competition could make a substantial contribution to the corpus of EU economic law, with positive effects regarding efficiency and social welfare.

Keywords: public procurement, public buyer, restraints and distortions of competition, competition principle, functional approach

JEL Classification: K21, K23, K42