Monday 1 February 2010

EU Lisbon Treaty and public procurement

The Lisbon Treaty entered into force on 1 December 2009, and the internal market remains a core aim of the European Union, meant to comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties (Article 26(2) TFEU).

Usually public procurement is dealt with from the angle of the procurement directives 2004/18 and 2004/17, or with regard to the national level. However, the European Parliament has published a briefing paper, which looks at the possible effects of primary law, the Lisbon Treaty, on future legislation, guidance and interpretation of EU public procurement law:

Annette Rösenkotter & Thorsten Wuersig: The impact of the Lisbon Treaty in the field of Public Procurement (PE 429.988; January 2010; 20 pages).

The authors analyse the potential effects of the social market economy, environmental protection (including the EU Charter of Fundamental Rights), social aspects, as well as the strengthened role of local and regional self-governance, with a view to the Protocol on Services of General Interest.

After these substantive modifications, the authors go on to discuss procedural aspects, namely the principle of subsidiarity, where they contend (page 11):

Since the principle of subsidiarity does not apply in fields of exclusive competence of the Union, the strengthened role of the principle of subsidiarity can – in principle – not alter the Union’s general competence in the field of public procurement as an instrument to ensure the functioning of the internal market.

However, with regard to the strengthened role of local self- governance, it could be argued that a legislation, which imposes the application of procurement rules on pure acts of self- organisation on the local level, is not covered by this exclusive competence and therefore constitutes a breach of the principle of subsidiarity.

Inter-communal (local or regional) cooperation and a wider scope of award criteria (environmental or social) lead the authors to discuss the possibilities of clarifications through ECJ case law, interpretative communications from the Commission and amendments to directives.

Ralf Grahn

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