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Truly Competitive Public Procurement as a Europe 2020 Lever: what Role for the Principle of Competition in the 2014 Public Procurement Rules?

Albert Sanchez Graells

Public procurement is a pillar in the Europe 2020 strategy (2010) and one of the core policies derived from the Single Market Acts I (2011) and II (2012). As the European Parliament stressed, "if used effectively, public procurement could be a real driver" for socially-responsible and sustainable growth (Res of 25.10. 2011 on modernisation of public procurement, 2011/2048(INI), para. 13). However, contrary to majoritarian views (McCrudden, Arrowsmith, Kunzlik, Semple, etc), it must be stressed that public procurement can only make such a contribution by promoting the maximum degree of competition and being open to market-led innovation, instead of trying to mandate such innovation or 'greening' of procurement. This approach can be traced back to the Europe 2020 strategy itself, where it is stressed that "[p]ublic procurement policy must ensure the most efficient use of public funds and procurement markets must be kept open EU-wide". Following these cues, this paper takes the view that the principle of competition is the main tool in the 2014 procurement toolkit and the moderating factor in the implementation of green and innovation procurement under the new rules. To substantiate that claim, this paper focusses on the interpretation of Article 18 of Directive 2014/24, which consolidates the principle of competition. It attempts its interpretation and proposes a strict proportionality test applicable to the promotion of green and innovative procurement where such 'strategic' use can generate market distortions.

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