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EU Public Procurement Law
ELGAR EUROPEAN LAW
Founding editor: John Usher, formerly Professor of European Law and Head,
School of Law, University of Exeter, UK
European integration is the driving force behind constant evolution and change in the
laws of the member states and the institutions of the European Union. This important
series will offer short, state-of-the-art overviews of many specific areas of EU law,
from competition law to consumer law and from environmental law to labour law.
Whilst most books will take a thematic, vertical approach, others will offer a more
horizontal approach and consider the overarching themes of EU law.
Distilled from rigorous substantive analysis, and written by some of the best names
in the field, as well as the new generation of scholars, these books are designed both to
guide the reader through the changing legislation itself, and to provide a firm theoreti-
cal foundation for advanced study. They will be an invaluable source of reference for
scholars and postgraduate students in the fields of EU law and European integration, as
well as lawyers from the respective individual fields and policymakers within the EU.
Titles in the series include:

Christopher H. Bovis
EU Criminal Law and Justice

Maria Fletcher and Robin Lööf with Bill Gilmore
Judicial Review in EU Law

Alexander H. Türk
EU Intellectual Property Law and Policy

Catherine Seville
EU Private International Law

Second Edition
Peter Stone
EU Labour Law
A.C.L. Davies

Second Edition
EU Public Procurement
Law
Second Edition
H.K. Bevan Chair in Law, Law School, University of Hull, UK
ELGAR EUROPEAN LAW
Edward Elgar
Cheltenham, UK • Northampton, MA, USA
© Christopher H. Bovis 2012
All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system or transmitted in any form or by any means, electronic, mechanical
or photocopying, recording, or otherwise without the prior permission of the
publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.

William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book

is available from the British Library
Library of Congress Control Number: 2012938069
ISBN 978 0 85793 841 1 (cased)
Typeset by Cambrian Typesetters, Camberley, Surrey

Printed and bound by MPG Books Group, UK
04
For Jakov
Contents
Preface viii
Acknowledgements xii
Table of cases before the European Court of Justice xiii
Introduction 1
1. Public procurement and the single market 11
2. The legal framework of public sector procurement 59
3. The legal framework of utilities procurement 128
4. Redress and remedies in public procurement 194
5. The doctrines and principles of public procurement 250
6. The notion of contracting authorities 286
7. The notion of public contracts 333
8. The award of public procurement contracts 376
9. Procurement and partnerships 426
Conclusion 482
Index 501
vii
Preface
The 21st century has begun with European Institutions striving for compet-
itiveness and growth in the European Union. One of the most important
drivers for both competitiveness and growth in the Member States is the
regulation of public procurement.
The regulation of public procurement in the European Union has multiple
dimensions, as a discipline of European law and policy, directly relevant to the
fundamental principles of the common market and as a policy instrument in
the hands of Member States. Its purpose is to insert a regime of competitive-
ness in the relevant markets and eliminate all non-tariff barriers to intra-
community trade that emanate from preferential purchasing practices which
favour national undertakings. The regulation of public procurement represents
best practice in the delivery of public services by the state and its organs and
facilitates the observance of well-embedded principles such as accountability
for public expenditure, avoidance of corruption and political manipulation.
This book aims to provide the reader with a comprehensive analysis of
the law and jurisprudence which have shaped the landscape of the regulation
of public procurement in the European Union and its Member States.
In Chapter 1 public procurement is positioned within the context of the
single market in the European Union. The objective of this chapter is to
provide the necessary links between the regulation of public procurement
and the remit of European law. This chapter reveals the concept of public
markets and the economic policy dimension in the regulation of public
procurement. It also points out the policy rationale of the relevant legal
structure and the overall framework of Community and national compe-
tence. Chapter 1 examines the anti-trust dimension in public procurement
regulation and justifies the influence of neo-classical economic theory upon
the integration of public markets. This finding also reflects on the public
policy dimension of public procurement and the interplay of public purchas-
ing with state aid. As a result, the industrial policy dimension in public
procurement emerges and the remit of public procurement regulation
demonstrates its flexibility and complementary relation with other policies
in the European integration process.
Chapter 2 covers the applicability of the public sector rules, the coverage
and scope of the new Public Sector Directive, the requirements for adver-
viii
Preface ix
tisement and publicity of public contracts, the process of qualitative selec-

tion of tenderers and candidates, the use of award procedures and award
criteria. Chapter 3 reflects on the applicability of the utilities rules, the
coverage and scope of the Utilities Directive, the activities which are
covered and the activities which are excluded from the Utilities Directive,
publicity and advertisement requirements, qualification and qualitative
selection systems, award procedures, framework agreements and award
criteria.
Chapter 4 deals with legal redress and compliance with the public
procurement acquis in the Member States and reflects on remedies available
to individuals at national level and access to justice in public procurement
disputes. The objective of this chapter is to assess the progress made by
Member States to decentralize enforcement of public procurement rules by
creating the appropriate legal frameworks that encourage aggrieved contrac-
tors to seek redress and justice. This chapter covers the applicability and
principles of the Remedies Directives, which supplement the application of
the substantive Public Sector and Utilities Directives.
Chapter 5 addresses the doctrines and principles of public procurement
regulation which have emerged through its evolution. The doctrines of
public procurement regulation refer to the mechanism for the applicability
and engagement of the relevant rules and provide for different notions and
definitions which are necessary for the harmonization of national legal and
political systems with a view to integrating their respective public markets.
The principles of public procurement regulation include the principle trans-
parency and accountability and their surrogate principles of non-discrimina-
tion and objectivity. The chapter provides for a comprehensive analysis of
the interplay of these principles and the way they have influenced the evolu-
tion of public procurement regulation. Chapter 6 deals with the notion of
contracting authorities as instrumental concept for the traction of the public
and utilities procurement rules. The analysis in the chapter offers a codified
approach of the concept of contracting authorities under the Court’s jurispru-
dence and its recent developments, their relation with private sector under-
takings, the conditions for pursuing services of general interest as part of
public procurement contracts, especially the criteria for defining bodies
governed by public law and the tests used by the Court to define the exis-
tence of state control over an entity which is construed as contracting author-
ity. Chapter 7 covers the notion of public contracts as instrumental concept
for the traction of the public and utilities procurement rules. The chapter
offers a comprehensive analysis of jurisprudential developments relating to
the notion of public contracts and deals with the notions of public contracts
in cases of public service concessions, vertical procurement and subcon-
tracting, procurement and state aid, procurement and services of general
x EU public procurement law
interest, needs in general interest and contracts financing public services.

Chapter 8 reflects on the process of awarding public procurement contracts
and covers the selection and qualification of tenderers and candidates, where
it examines jurisprudence on technical standards, selection and qualification
requirements, consortia participation in tendering procedures, reliance of
tenderers on other sources substitution of consortia members, and reasons
for exclusion and disqualification of tenderers. In addition, the chapter
examines award procedures and award criteria in public procurement. The
objective of this chapter is to focus on the reasoning of the Court in its
attempt to provide a dynamic analysis of the procedures applicable to the
award of public contracts. It demonstrates the nature and characteristics of
the award procedures, as viewed by the Court and their utilization by
contracting authorities. It elaborates upon the restrictive interpretation of the
negotiated procedures and attempts to define the framework for their
utilization, the grounds for their legitimate use, and the justification and
causality requirements for negotiated procedures without prior publicity,
practically the use of negotiated procedure for technical reasons or reasons
of extreme urgency, or as a result of repetition of similar works within three
years. The chapter finally investigates the Court’s case law in relation to
award criteria and presents a comprehensive analysis of the two criteria laid
down in the Public Procurement Directives. It provides for the conditions
under which contracting authorities award public contracts. The Court has
many opportunities to pronounce on the features of the award criteria,
namely the lowest price or the most economically advantageous offer. The
chapter explores the Court’s views in relation to the following topics: the
meaning of abnormally low offers, the compatibility of mathematical
matrixes, the evaluation of the lowest offer, the factors included in the most
economically advantageous offer and policy considerations, such as
employment, protection of the environment as part of the award criteria.
Chapter 9 covers the evolution of the phenomenon of public–private
partnerships and provides for a comprehensive analysis of the structure of
remedies and access to justice at national level and the jurisprudence of the
Court relating to compliance issues of public procurement regulation. The
chapter evaluates the relation between public procurement and
public–private partnerships and the surrogate development of public–public
partnerships and concessions as instruments for delivering public services.
It appraises recent legal, policy and judicial developments that have
emerged as a result of the involvement of the private sector in the delivery
of public services and in particular their financing. The concept of
public–private partnerships is gaining momentum across the common
market and policy makers are keen to see the relevant model as a credible
and effective delivery mechanism. The chapter demonstrates that the
Preface xi
procurement of partnerships must adhere to the enshrined principles of

transparency, objectivity and non-discrimination that underpin the public
procurement regime and provides for a detailed analysis of legal develop-
ments in the field of concessions.
Acknowledgements
It is with deep appreciation that I express my gratitude to a number of people

who have been instrumental in my study of public procurement over the last
decade. I record my gratitude to Professor Alan Dashwood, Professor Harry
Arthurs, Dr Christine Cnossen, Mr Terrence Bramall, Mr Richard Watson, and
Mr David Blunt.
I am eternally indebted to Peter Cnossen for his enormous support, guid-
ance and inspiration.
Professor Christopher H. Bovis

H.K. Bevan Chair in Law
University of Hull
xii
Table of cases before the European Court
of Justice
C-21–24/72, International Fruit Co C-18/84, Commission v. France,
NV v. Produktschap voor [1985] ECR 1339 36, 342
Groenten en Fruit, [1972] ECR C-103/84, Commission v. Italy,
1236 202 [1986] ECR 1759 36, 342
C-127/73, BRT v. SABAM, [1974] C-234/84, Belgium v. Commission,
ECR 313 47, 269, 359 [1986] ECR 2263 40, 265, 342,
C-173/73, Italy v. Commission, 343, 349
[1974] ECR 709 20, 42, 43, 44, C-24/85, Spijkers v. Gebroders
353 Benedik Abbatoir CV, [1986]
C-36/74, Walrave and Koch v. ECR 1, 1123 283, 299
Association Union Cycliste C- 40/85, Belgium v. Commission.
International et al, (1974) ECR [1986] ECR I-2321 43
1423 256, 288 C-67/85, 68/85 and 70/85, Van der
C-74/76, Ianelli & Volpi Spa v. Ditta Kooy and Others v. Commission,
Paola Meroni, [1977] 2 CMLR [1988] ECR 219 40, 343, 350
688 36, 342 C-199/85, Commission v. Italy,
C-249/81, Commission v. Ireland, [1987] ECR 1039 398, 400, 444
[1982] ECR 4005 256, 288 C-310/85, Deufil v. Commission,
C-244/81, Commission v. Ireland, [1987] ECR 901 40, 42, 43, 44,
1982, ECR 4005 36, 342 343, 350
C-76/81, SA Transporoute et C-66/86, Ahmed Saeed Flugreisen v.
Travaux v. Minister of Public Commission, [1989] ECR 803
Works, [1982] ECR 457 24, 26, 269, 359, 479
45, 253, 272, 275, 345, 354, 378, C-27/86, 28/86, 29/86,
410, 423 Constructions et Enterprises
C-323/82, Intermills v. Commission Industrielles SA (CEI) v.
[1984] ECR 3809 43 Association Intercommunale pour
C-240/83, Procureur de la les Autoroutes des Ardennes, CEI
République v. ADBHU, [1985] and Bellini, [1987] ECR 3347
ECR 531 38, 264, 348, 359 23, 272, 273, 379, 380, 396, 413
C-152/84, Marshall v. Southampton C-84/86, Commission v. Hellenic
and South West Hampshire Area Republic, not reported 35, 341
Health Authority, [1986] ECR C-27/86, Constructions et
723 257, 290 Enterprises Industrielles SA
xiii
xiv EU public procurement law
(CEI) v. Association C-247/89, Commission v. Portugal,

Intercommunale pour les [1991] ECR I-3659 286
Autoroutes des Ardennes, C- C-261/89, Italy v. Commission,
28/86, Ing.A. Bellini & Co. S.p.A. [1991] ECR I-4437 40, 343, 350
v. Regie de Betiments, C-29/86, C-305/89, Italy v. Commission (‘Alfa
Ing.A. Bellini & Co. S.p.A. v. Romeo’), [1991] ECR I-1603 40,
Belgian State, [1987] ECR 3347 265, 342, 343, 349
23, 272, 379, 386 C-360/89, Commission v. Italy,
C-66/86, Silver Line Reisebüro, [1992] ECR I-3401 30, 35, 279,
[1989] ECR I-803 269, 359, 479 341
C-45/87, Commission v. Ireland, C-296/89, Impresa Dona Alfonso di
[1988] ECR 4929 26, 270, 376, Dona Alfonso & Figli s.n.c. v.
377, 378, 417, 487, 496 Consorzio per lo Sviluppo
C-31/87, Gebroeders Beentjes BV v. Industriale del Comune di
the Netherlands, [1989] ECR Monfalcone, judgment of 18 June
4365 25, 30, 256, 272, 273, 279, 1991 25, 26, 45, 275, 345, 353,
282, 288, 300, 339, 380, 381, 354, 410, 424
386, 396, 408, 412, 418, 420, 484 C-288/89, Stichting Collectieve
C-45/87, Commission v. Ireland, Antennevoorziening Gouda and
[1988] ECR 4929 26, 270, 376, others v. Commissariaat voor de
377, 378, 417, 487, 496 Media, [1991] ECR I-04007 478
C-301/87, France v. Commission, C-41/90, Höfner, [1991] ECR I-1979
[1990] ECR I 20, 40, 343, 350 479
C-3/88, Commission v. Italy, [1989] C-179/90, Merci Convenzionali
ECR 4035 372, 398, 444 Porto di Gevova, [1991] ECR 1-
C-21/88, Du Pont de Nemours 5889 15, 261, 293
Italiana SpA v. Unita Sanitaria C-362/90, Commission v. Italy, judg-
Locale N.2 di Carrara, [1990] ment of 31 March 1992 35, 341
ECR 889 35, 341 C-24/91, Commission v. Kingdom of
C-103/88, Fratelli Costanzo S.p.A. v. Spain, [1994] CMLR 621 286,
Comune di Milano, [1989] ECR 398, 407, 444
1839 25, 26, 45, 275, 345, 354, C-29/91, Dr Sophie Redmond
386, 410, 424 Stichting v. Bartol, IRLR 369
C-351/88, Lavatori Bruneau Slr. v. 283, 299
Unita Sanitaria Locale RM/24 di C-209/91, Rask v. ISS Kantinservice,
Monterotondo, [1991] ECR I- [1993] ECR 1 283, 299
3641 35, 341 C-107/92, Commission v. Italy,
C-303/88, Italy v. Commission, judgment of 2 August 1993 398,
[1991] ECR I-1433 40, 343, 407, 444
350 C-296/92, Commission v. Italy, judg-
C-188/89, Foster v. British Gas, ment of 12 January 1994 398,
[1990] ECR-1313 286 444
Table of cases xv
C-71/92, Commission v. Spain, judg- Telecommunications PLC, OJ

ment of 30 June 1993 273, 380, 1993, C 287/6 46, 263, 287, 357
396, 403 C-39/94, SFEI and Others, [1996]
C-89/92, Ballast Nedam Groep NV v. ECR I-3547 40, 343, 350
Belgische Staat, [1994] 2 CMLR C-48/94, Rygaard v. Stro Molle
379 Akustik, judgment of 19
C-278/92 to C-280/92, Spain v. September 1995 283, 299
Commission, [1994] ECR I-4103 C-57/94, Commission v. Italy, judg-
40, 343, 349 ment of 18 May 1995 398, 400,
C-296/92, Commission v. Italy, judg- 403, 444
ment of 12 January 1994 398, T-67/94, Ladbroke Racing v.
444 Commission, [1998] ECR II-1
C-364/92, SAT Fluggesellschafeten, 40, 343, 350
[1994] ECR 1-43 262, 294 C-79/94, Commission v. Greece,
C-382/92, Commission v. United judgment of 4 May 1995 200
Kingdom, [1994] ECR 1 283, C-87/94R, Commission v. Belgium,
299 order of 22 April 1994 372, 384,
C-387/92, Banco Exterior, [1994] 409, 497
ECR I-877 38, 40, 264, 343, 348 C-157/94, Commission v
C-392/92, Schmidt v. Spar und Netherlands, [1997] ECR I-5699.
Leihkasse der fruherer Amter 47, 269, 359
Bordersholm, Kiel und C-158/94, Commission v. Italy,
Cronshagen, [1994] ECR 1, 1320 [1997] ECR I-5789 47, 269, 359
283, 299 C-159/94, Commission v. France,
C-382/92, Commission v. United [1997] ECR I-5815 47, 269, 359
Kingdom, [1994] ECR 1 283, 299 C-160/94, Commission v. Spain,
C-56/93, Belgium v. Commission, [1997] ECR I-5851 47, 269, 359
[1996] ECR I-723 40, 42, 43, C-241/94, France v. Commission,
343, 350, 353 [1996] ECR I-4551 42, 43, 44,
C-359/93, Commission v. the 353
Netherlands, judgment of 24 T-358/94, Air France v. Commission,
January 1995 26, 200, 270, 376, [1996] ECR II-2109 40, 343,
378 350
C-280/93, Germany v. Council, judg- T-106/95, FFSA and Others v.
ment of 5 October 1994 202, 388 Commission, [1997] ECR II-229
C-324/93, R. v. The Secretary of 38, 264, 348
State for the Home Department, C-343/95, Diego Cali et Figli,
ex parte Evans Medical Ltd and [1997] ECR 1-1547 262, 294,
Macfarlan Smith Ltd, judgment of 484
28 March 1995 273, 282, 412 T-16/96, Cityflyer Express v.
C-392/93, The Queen and H.M. Commission, [1998] ECR II- 757
Treasury, ex parte British 40, 43, 343, 350
xvi EU public procurement law
C-44/96, Mannesmann Anlangenbau C-256/97, DM Transport, [1999]

Austria AG et al. v. Strohal ECR I-3913 40, 343, 350
Rotationsdurck GesmbH, [1998] T-613/97, Ufex and Others v.
ECR 73 11, 18, 29, 42, 258, 261, Commission, [2000] ECR II-4055
266, 278, 293, 300, 301, 307, 41, 266, 351
309, 312, 317, 322, 323, 324, T-266/97, Vlaamse Televisie
339, 345, 347, 352, 412, 482, 284 Maatschappij, [1999] ECR II-
C-323/96, Commission v. Kingdom 2329 479
of Belgium, [1998] ECR I-5063 C-124/97, Markku Juhani Läärä,
256, 289, 399 Cotswold Microsystems Ltd and
C-342/96, Spain v. Commission, Oy Transatlantic Software Ltd v
[1999] ECR I-2459 40, 343, Kihlakunnansyyttäjä (Jyväskylä)
350 and Suomen valtio (Finnish
C-353/96, Commission v. Ireland State), [1999] ECR I-06067 478
and C-306/97, Connemara C-107/98, Teckal Slr. v. Commune di
Machine Turf Co Ltd v. Coillte Viano, [1999] ECR I-8121 46,
Teoranta, [1998] ECR I-8565 257, 260, 268, 292, 298, 303,
256, 288 325, 339, 356, 364, 385, 392,
C-360/96, Gemeente Arnhem 467, 484
Gemeente Rheden v. BFI Holding C-156/98, Germany v. Commission,
BV, [1998] ECR 6821 11, 17, 29, [2000] ECR I-6857 40, 343, 350
41, 261, 262, 266, 278, 293, 294, C-176/98, Holst Italia v. Comune di
300, 305, 307, 312, 315, 324, Cagliari, [1999] ECR I-8607
334, 335, 337, 339, 343, 346, 340, 341, 379, 389
350, 412, 435, 447, 448, 450, C-380/98, The Queen and H.M.
482, 484 Treasury, ex parte University of
C-5/97, Ballast Nedam Groep NV v. Cambridge, [2000] ECR 8035
Belgische Staat, judgment of 18 29, 217, 257, 278, 290, 292, 314,
December 1997 379 320, 325, 371, 412, 484
C-6/97, Italy v. Commission, [1999] C-324/98, Telaustria Verlags GmbH,
ECR I-2981 40, 343, 350 Telefonadress GmbH and Telekom
T-46/97, [2000] ECR II-2125 38, Austria AG, [2000] ECR I-10745
264, 348 217, 334, 336, 338, 369, 371,
C-75/97, Belgium v. Commission, 372, 373, 383, 395, 408, 435,
[1999] ECR I-3671 40, 343, 350 446, 449, 450, 484, 497
C-144/97, Commission v France, C-94/99, ARGE Gewässerschutzt v.
[1998] ECR 1-613 289 Bundesministerium für Land- und
C-174/97 P, [1998] ECR I-1303 38, Forstwirtschaft, [2000] ECR I-
364, 348 11037 32, 45, 276, 302, 345,
T-204/97 and T-270/97, EPAC v. 354, 380, 411, 424
Commission, [2000] ECR II-2267 C-223/99, Agora Srl v. Ente
40, 343, 350 Autonomo Fiera Internazionale di
Table of cases xvii
Milano and C-260/99 Excelsior GmbH (HI) and Stadt Wien, ECR
Snc di Pedrotti Runa & C v. Ente [2002] I-5553 213, 214, 227,
Autonomo Fiera Internazionale di 229, 233, 243, 245, 285, 371,
Milano, [2001] ECR 3605 11, 395, 408, 487, 496
18, 41, 261, 262, 266, 293, 294, C-283/00, Commission of the
325, 339, 343, 350, 482, 484 European Communities v.
C-237/99, Commission v. France, Kingdom of Spain, [2003] ECR I-
[2001] ECR 934 29, 257, 278, 11697 301, 303, 322, 324
290, 292, 312, 315, 325, 412, 484 C-327/00, Santex SpA and Unità
C-285/99 & 286/99, Impresa Socio Sanitaria Locale n. 42 di
Lombardini SpA v. ANAS, [2001] Pavia, [2003] ECR I-1877 232,
ECR I-9233 25, 26, 276, 383, 244, 246
393, 408, 424, 484 C-373/00, Adolf Truley GmbH and
C-513/99, Concordia Bus Finlandia Bestattung Wien GmbH, [2003]
v. Helsingin Kaupunki et HKL- ECR I-1931 292, 310, 312, 323,
Bussiliikenne, [2000] ECR I-7213 346, 484
25, 274, 283, 381, 384, 406, 414, C-411/00, Felix Swoboda GmbH and
415, 484 Österreichische Nationalbank,
C-470/99, Universale-Bau AG, [2002] ECR I-10567 360, 362
Bietergemeinschaft, ECR [2002] C-5/01, Belgium v. Commission,
I-11617 205, 224, 228, 239, 246, [2002] ECR I-3452 42, 43, 44,
285, 301, 312, 313, 320, 322, 231, 240, 353, 380, 382, 481, 484
323, 407, 408, 421, 484 C-83/01 P, C-93/01 P and C-94/01.
C-53/00, Ferring SA v. Agence Chronopost and Others, [2003]
centrale des organismes de ECR I-6993 41, 266, 351
s?curit? sociale (ACOSS), [2001] C-126/01, Ministre de l’economie,
ECR I-09067 38, 264, 348 des finances et de l’industrie v.
C-280/00, Altmark Trans GmbH and GEMO SA, [2003] ECR 3454 42
Regierungspräsidium Magdeburg C-314/01, Siemens AG Österreich,
v. Nahverkehrsgesellschaft ARGE Telekom & Partner and
Altmark GmbH and Hauptverband der österreichis-
Oberbundesanwalt beim chen Sozialversicherungsträger,
Bundesverwaltungsgericht, [2004] ECR I-2549 219, 340,
[2003] ECR 1432 38, 39, 264, 341, 389, 484
268, 348, 358 C-448/01, EVN AG, Wienstrom
C-214/00, Commission of the GmbH and Republik Österreich,
European Communities v. [2003] ECR I-14527 220, 274,
Kingdom of Spain, ECR [2003] I- 419, 422
4667 207, 241, 301, 309, 322, C-249/01, Werner Hackermüller and
323 Bundesimmobiliengesellschaft
C-92/00, Hospital Ingenieure mbH (BIG), Wiener
Krankenhaustechnik Planungs- Entwicklungsgesellschaft mbH für
xviii EU public procurement law
den Donauraum AG (WED), ECR C-212/02, Commission of the

[2003] I-6319 223, 226, 242 European Communities v.
C-315/01, Gesellschaft für Republic of Austria, unpublished
Abfallentsorgungs-Technik GmbH 206, 222, 242, 244, 285
(GAT) and Österreichische Joined Cases C-21/03 and C-34/03,
Autobahnen und Schnellstraßen Fabricom SA v. État Belge, not
AG (ÖSAG), ECR [2003] I-6351 yet reported.
231, 240, 380, 382, 421, 484 C-84/03, Commission of the
C-410/01, Fritsch, Chiari & Partner, European Communities v.
Ziviltechniker GmbH and Others Kingdom of Spain, not yet
and Autobahnen- und reported 383, 384, 385, 388, 484,
Schnellstraßen-Finanzierungs-AG 487, 496
(Asfinag), ECR [2003] I-11547 C-26/03, Stadt Halle, RPL
204, 205, 224, 225, 244 Recyclingpark Lochau GmbH v.
C-421/01, Traunfellner GmbH and Arbeitsgemeinschaft Thermische
Österreichische Autobahnen- und Restabfall- und
Schnellstraßen-Finanzierungs-AG Energieverwertungsanlage TREA
(Asfinag), [2003] ECR I-11941
Leuna, not yet reported 212, 214,
418, 419
222, 243, 244, 301, 323, 327,
C-18/01, Arkkitehtuuritoimisto Riitta
329, 331, 339, 340, 389, 465,
Korhonen Oy, Arkkitehtitoimisto
468, 484
Pentti Toivanen Oy,
C-126/03, Commission of the
Rakennuttajatoimisto Vilho
European Communities v. Federal
Tervomaa and Varkauden
Taitotalo Oy, [2003] ECR I-5321 Republic of Germany, [2005]
310, 316, 323, 324, 340, 484 ECR I-00001 339, 340, 389,
Joined Cases C-20/01 and C-28/01, 484
Commission of the European C-264/03, Commission v. France,
Communities v. Federal Republic [2005] ECR I-8831 366, 476,
of Germany, [2003] ECR I-3609 487, 496
248, 404, 407 C-458/03, Parking Brixen GmbH v.
C-57/01, Makedoniko Metro, Gemeinde Brixen and Stadtwerke
Mikhaniki AE and Elliniko Brixen AG, [2005] ECR I-08585
Dimosio, [2003] ECR 1-1091 326, 327, 329, 369, 372, 469, 497
213, 227, 233, 390, 394, 484, C-84/03, Commission v. Spain,
487, 496, [2005] ECR-I00139 300, 363,
C-243/01, Gambelli, [2003] ECR I 402, 484
13031 478 C-231/03, Consorzio Aziende
C-230/02, Grossmann Air Service, Metano (Coname) v. Comune di
Bedarfsluftfahrtunternehmen Cingia de’ Botti, [2005] ECR I-
GmbH & Co. KG and Republik 07287 329, 369, 370, 371, 372,
Österreich, [2004] ECR I-1829 470, 496
204, 223, 244, 245 C-264/03, Commission v. France,
Table of cases xix
[2005] ECR I-08831 366, 369, C-220/06, Asociación Profesional de

476, 487, 496 Empresas de Reparto y
C412/04, Commission v. Italy, Manipulado de Correspondencia
[2008] ECR I0000 369 v Administración General del
C-29/04, Commission v. Austria, Estado, [2007] ECR I-12175
[2005] ECR I-09705. 245, 328, 369, 477, 479
329, 468 C147/06 and C-148/06, SECAP SpA
C-340/04, Carbotermo SpA and and Santorso Soc. coop. arl,
Consorzio Alisei v. Comune di [2008] ECR I-3565 369
Busto Arsizio and AGESP SpA, C-480/06, Commission v. Germany,
[2006] ECR I-04137 326, 327, [2009] ECR I-04747 331, 367
330, 469 C437/07, Commission v. Italy,
C382/05, Commission v. Italy, [2008] ECR I0000 373, 463
[2007] ECR I6657 373 C-423/07, Commission v. Spain,
C-6/05, Medipac-Kazantzidis AE v. judgment of 22 April 2010 375
Venizelio-Pananio (PE.S.Y. C-536/07, Commission v. Germany,
KRITIS), [2007] ECR I4557 369 ECR-I 10355 365
C-324/07, Coditel Brabant SA v.
C-295/05, Asociación Nacional de
Commune d’Uccle and Région de
Empresas Forestales (Asemfo) v.
Bruxelles- Capitale, [2008] ECR
Transformación Agraria SA
I-08457 327, 332, 467
(Tragsa) and Administración del
C-573/07, Sea Srl v. Comune di
Estado, [2007] ECR I-2999 327,
Ponte Nossa, [2009] ECR I-
331, 477
08127 328, 467
C-371/05, Commission v. Italy, C-42/07, Liga Portuguesa de
[2008] ECR I-00110 468 Futebol Profissional and Bwin
C-532/06, Emm G. Lianakis AE v. International Ltd v.
Alexandroupolis, [2008] ECR I- Departamento de Jogos da Santa
251 396 Casa da Misericórdia de Lisboa,
C-454/06, Pressetext [2009] ECR I-07633 478
Nachrichtenagentur, [2008] ECR C-206/08, WAZV Gotha v.
I4401 374 Eurawasser Aufbereitungs, [2009]
C-241/06, Lämmerzahl GmbH v. ECR I-8377 373, 463, 464
Freie Hansestadt Bremen, [2008] C-160/08, Commission v. Germany,
1 CMLR 462 246 judgment of 29 April 2010 374
C-70/06, Commission v. Portugal, C-91/08, Wall AG v. Stadt Frankfurt
[2004] ECR I-0000 249 am Main, judgment of 13 April
C-492/06, Consorzio Elisoccorso 2010 248, 374
San Raffaele v. Elilombarda Srl C-145/08 and C-149/08, Club Hotel
and Azienda Ospedaliera Loutraki AE and Others v.
Ospedale Niguarda Ca’ Granda Ethnico Symvoulio
di Milano, [2007] ECR I-08189 Radiotileorasis [2010] All ER (D)
245 249
xx EU public procurement law
C-149/08, Aktor Anonymi Techniki Immobilienaufgaben, [2010] 3

Etaireia (Aktor ATE) v. Ethnico CMLR 18 368
Symvoulio Radiotileorasis, [2010] C-5/08, Commission v. Germany,
ECR I-0000 249 [2009] ECR I-00168 249
C-406/08, Uniplex (UK) Ltd v. NHS C-03/08, The Sporting Exchange
Business Services Ltd, [2010] Ltd, trading as Betfair v. Minister
ECR I-0000 247 van Justitie, [2010] not yet
C-456/08, Commission v. Ireland, published 462, 478
[2010] ECR I-0000 247 C-17/09, Commission v. Germany,
C-451/08, Helmut Müller v. judgment of 21 January 2010
Bundesanstalt für 247
Introduction
Public procurement is a powerful exercise. It carries the aptitude of acquisi-

tion; it epitomizes economic freedom; it depicts the nexus of trade relations
amongst economic operators; it represents the necessary process to deliver
public services; it demonstrates strategic policy options. Public procurement
as a discipline expands from a simple topic of the common market, to a multi-
faceted tool of European regulation and governance covering policy choices
and revealing an interesting interface between centralized and national gover-
nance systems. This is where the legal effects of public procurement regula-
tions are felt most.
The regulation of public procurement in the European Union has multiple
dimensions, as a discipline of European law and policy, directly relevant to the
fundamental principles of the common market and as a policy instrument in the
hands of Member States. The purpose for the regulation of public procurement
is to insert a regime of competitiveness in the relevant markets and eliminate
all non-tariff barriers to intra-community trade that emanate from preferential
purchasing practices which favour national undertakings. Apart from reasons
relating to accountability for public expenditure, avoidance of corruption and
political manipulation, the regulation of public procurement represents best
practice in the delivery of public services by the state and its organs.
In addition, the regulation of public procurement is a priority in public
policy matters for the European Union. A combination of legal, macro and
micro-economic objectives correspond to public sector management princi-
ples such as transparency, accountability, fiscal prudency and competition and
make public procurement regulation a necessary ingredient for the EU inte-
gration process. The commonly accepted assumption is that public procure-
ment is not subject to the same commercial pressure or organizational
incentives for sound management as private sector procurement which is
underpinned by the foundations of strong competition. This has prompted the
imposition, not only by the EU but by many jurisdictions around the world, of
legal and regulatory disciplines to encourage the better use of public financial
resources, to introduce greater efficiency and to reduce the risk of favouritism
or corruption in public purchasing.
The stakes cannot be higher for the EU. Currently, the total public expen-
diture directed by the Member States in procuring goods, works and services
1
2 EU public procurement law
accounts for over €2 trillion. Public procurement in the Member States is a

highly fragmented and complex process, notably in relation to the extent of
centralization or decentralization which varies amongst Member States as a
function of the organization of their public administration. There is a large and
heterogeneous range of over 250 000 contracting authorities across the EU
which annually conclude in excess of 2 million procedures for the award of
public contracts.1
EU public procurement rules exist in order to introduce a discipline of
regulation in the relevant markets and in particular, to ensure that undertakings
from across the Single Market and beyond have the opportunity to compete for
public contracts by removing legal and administrative barriers to participation
in cross-border tenders, for ensuring equal treatment and by abolishing any
scope for discriminatory purchasing through enhanced levels of transparency
and accountability.
The European Union, after a considerable amount of debate and consulta-
tion2 adopted a detailed set of rules in the form of EU Directives which govern
the award of public contracts in the supplies, works and services sectors, as
well as in the public utilities3 in 2006. The Directives reflect on the 1996
1 An approximate 20% of total public expenditure on goods, works and services

is covered by the EU public procurement Directives. The estimated value for these
contracts is €420 billion in 2009–10. Three quarters of the value of procurement adver-
tised in accordance with EU rules is for construction work and services. Supplies make
up only a quarter of all procurement.
2 See the proposal from the European Commission, OJ C 29 E, 30.1.2001, p. 11
and OJ C 203 E, 27.8.2002, p. 210; the opinion of the Economic and Social Committee
OJ C 193, 10.7.2001, p. 7; the opinion of the Committee of the Regions OJ C 144,
16.5.2001, p. 23; the opinion of the European Parliament of 17 January 2002 (OJ C 271
E, 7.11.2002, p. 176), Council Common Position of 20 March 2003 (OJ C 147 E,
24.6.2003, p. 1) and Position of the European Parliament of 2 July 2003. See also the
Legislative Resolution of the European Parliament of 29 January 2004 and Decision of
the Council of 2 February 2004.
3 See Directive 2004/18, OJ L 134, 30.4.2004 on the coordination of procedures
for the award of public works contracts, public supply contracts and public service
contracts and Directive 2004/17, OJ L 134, 30.4.2004 coordinating the procurement
procedures of entities operating in the water, energy, transport and postal services
sectors. The new Directives amend the existing regime which is applicable until 31
January 2006 and includes the following instruments: the Public Supplies Directive
93/36/EC, OJ L 199, as amended by Directive 97/52/EC OJ L 328 and Directive
2001/78/EC, OJ L 285; The Public Works Directive 93/37/EC, OJ L 199, amended by
Directive 97/52/EC, OJ L 328 and Directive 2001/78/EC, OJ L 285; The Utilities
Directives 93/38/EC, OJ L 199, amended by Directive 98/4/EC OJ L 101; The Public
Services Directive 92/50/EEC, OJ L 209, amended by Directive 97/52/EC, OJ L 328
and Directive 2001/78/EC, OJ L 285; The Remedies Utilities Directive 92/13/EEC, OJ
L 076, 23.03.1992; The Public Remedies Directive 89/665/EEC, OJ L 395, 30.12.1989.
Introduction 3
European Commission’s Green Paper on Public Procurement4 and the follow-

ing 1998 Commission’s Communication.5 The Directives have been seen as an
integral part of the Commission’s 2000 Work Programme, which pledges to
modernize the relevant legislation for the completion of the internal market
and at the same time implement the Lisbon European Council’s call for
economic reform within the internal market.
The degree and level of importance of public procurement in the European
Union and the constant evolution of its regulation which reveals indissoluble
links with Community law, prompted the European Commission during 2011
to launch a Green Paper6 to review the substantive public procurement
Directives. The vision and aspirations of European Institutions towards a
Single Market Act7 have identified public procurement reforms as essential
components of competitiveness and growth8 and as indispensable instruments
in delivering public services.9
The European Commission has been always keen to stress the significance
of public procurement as an essential component of the single market.10 Public
procurement has been identified as a considerable non-tariff barrier and a
hindering factor for the functioning of a genuinely competitive single market.
Economic justifications for its regulation are based on the assumption that by
introducing competitiveness into the relevant markets of the Member States,
their liberalization and integration will follow. This result, in theory, would
increase import penetration of products and services destined for the public
sector, would enhance the tradability of public contracts across the common
market and would bring about significant savings and price convergence.
4 See the Green Paper on Public Procurement in the European Union: Exploring
the way forward, European Commission, 1996.
5 See European Commission, Communication on Public Procurement in the
European Union, COM(98) 143.
6 See Green Paper on the modernisation of EU public procurement policy:
Towards a more efficient European Procurement Market, COM (2011) 15/47.
7 See European Commission, Communication to the European Parliament, the
Council, the Economic and Social Committee and the Committee of the Regions,
Towards a Single Market Act, COM(2010) 608 final.
8 See European Commission, Communication, Europe 2020, A strategy for
smart, sustainable and inclusive growth, 3.3.2010, COM (2010) 2020 final.
9 See European Commission, Guide to the application of the European Union
rules on state aid, public procurement and the internal market to services of general
economic interest, and in particular to social services of general interest, 7.12.2010,
SEC(2010) 1545 final. See European Commission, Buying Social: A Guide to Taking
Account of Social Considerations in Public Procurement, SEC(2010) 1258, final.
10 See European Commission, Communication to the European Parliament, the
Council, the Economic and Social Committee and the Committee of the Regions,
Towards a Single Market Act, COM(2010) 608 final.
However, Member States retain full discretion for the regulation of public
procurement outside the scope of the EU Directives.11 Several Member States
regulate public procurement below EU thresholds within the same act as the
contracts covered by the EU Directives and also require the use of open, fair
and competitive procedures, which have similar features to those laid down in
the Directives. There are areas where national rules and procedures are often
similar for contracts above and below the EU thresholds, such as rules for
qualitative selection, evaluation of tenders, award criteria, abnormally low
tenders, technical specifications, framework agreements and electronic
procurement. Other Member States provide a lighter regime for contracts
below the EU thresholds, which may take the form of administrative guidance
rather than formal legislation and offer shorter time limits for submission of
applications and tenders and less demanding rules for publication and for
selection of tenders.
Historically, two strategic plans have facilitated the economic integration of
the EU Member States. These plans were enacted by European institutions and
have been subsequently transposed into national laws and policies by Member
States. The first plan included a series of actions and measures aiming at the
abolition of all tariff and non-tariff barriers to intra-community trade. The
second plan has focused on the establishment of an effective, workable and
undistorted regime of competition within the common market, in order to
prevent potential abuse of market dominance and market segmentation,
factors which could have serious economic implications in its functioning. The
first plan, the abolition of all tariff and non-tariff barriers to intra-community
trade, reveals a static effect which aimed at eliminating all administrative and
legal obstacles to free trade and had as its focal point Member States and their
national administrations. The second plan, the establishment of an effective,
workable and undistorted regime of competition within the common market,
has been implemented at industry level and has a dynamic effect.
The regulation of public procurement in the European Union has been
significantly influenced by the internal market project. The White Paper for
the Completion of the Internal Market12 and the Single European Act repre-
sent the conceptual foundations of the regulation of public markets of the
11 Large amounts of public expenditure on goods and services to provide health,

education and social services (over 6% of GDP) are spent in ways which are not
covered by the EU public procurement Directives. Also, Public contracts below the EU
thresholds fall outside the scope of the EU public procurement Directives but they are
of significant importance. Below-threshold procurement was estimated at around €250
billion in 2008 or around 2% of EU GDP. Finally, the EU procurement Directives
provide certain explicit exemptions for expenditure on defence equipment.
12 See European Commission, White Paper for the Completion of the Internal
Market, (COM) 85 310 fin., 1985.
Introduction 5
Member States. The identification of public procurement as a significant non-

tariff barrier has offered ample evidence on the economic importance of its
regulation.13 Savings and price convergence appeared as the main arguments
for liberalising the trade patterns of the demand (the public and utilities
sectors) and supply (the industry) sides of the public procurement equation.14
The regulation of public procurement exposes an economic and a legal
approach to the integration of public markets in the European Union. On the
one hand, the economic approach to the regulation of public procurement aims
at creating an integral public market across the European Union. Through the
principles of transparency, non-discrimination and objectivity in the award of
public contracts, it is envisaged that the public procurement regulatory system
will bring about competitiveness in the relevant product and geographical
markets, will increase import penetration of products and services destined for
the public sector, will enhance the tradability of public contracts across the
common market, will result in significant price convergence and finally it will
be the catalyst for the needed rationalization and industrial restructuring of the
European industrial base.15
The legal approach to the regulation of public procurement, on the other
hand, reflects on a medium which facilitates the functions of the common
market. In parallel with the economic arguments, legal arguments have
emerged supporting the regulation of public procurement as a necessary ingre-
dient of the fundamental principles of the Treaties, such as the free movement
of goods and services, the right of establishment and the prohibition of
discrimination on nationality grounds.16 The legal significance of the regula-
tion of public procurement in the common market has been well documented
through the Court’s jurisprudence. The liberalization of public procurement
indicates the wish of European institutions to eliminate preferential and
discriminatory purchasing patterns by the public sector and create seamless
intra-community trade patterns between the public and private sectors.
Procurement by Member States and their contracting authorities is often
13 See Commission of the European Communities, The Cost of Non-Europe,

Basic Findings, Vol.5, Part A; The Cost of Non-Europe in Public Sector Procurement,
Official Publications of the European Communities, Luxembourg, 1988. Also the
Cechinni Report, 1992 The European Challenge, Aldershot, Wildwood House, 1988.
14 The European Commission has claimed that the regulation of public procure-
ment could bring substantial savings of ECU 20 bn or 0.5% of GDP to the (European)
public sector. See European Communities, The Cost of Non-Europe, op. cit.
15 See Commission of the European Communities, Statistical Performance for
keeping watch over public procurement, 1992. Also the Cost of Non-Europe, Basic
Findings, Vol.5, Part A; The Cost of Non-Europe in Public Sector Procurement, op. cit.
16 See Bovis, Recent case law relating to public procurement: A beacon for the
integration of public markets, 39 Common Market Law Review, 2002.
susceptible to a rationale and a policy that tend to favour indigenous under-

takings and national champions17 at the expense of more efficient competitors
(domestic or Community-wide). As the relevant markets (product and
geographical) have been sheltered from competition, distorted patterns emerge
in the trade of goods, works and services destined for the public sector. These
trade patterns represent a serious impediment in the functioning of the
common market and inhibit the fulfilment of the principles enshrined in the
Treaties.18
Legislation, policy guidelines and jurisprudence have all played their role
in determining the need for integrated public markets in the European Union,
where sufficient levels of competition influence the most optimal patterns in
resource allocation for supplying the public sector as well as the public utili-
ties with goods, works and services. Public procurement has now been
elevated as a milestone of the vision of the European Union in becoming a
competitive economy in the world by 2010.19
The European Court of Justice has viewed the public procurement legal
framework through two approaches: a positive one, revealing the flexibility of
the regulatory regime and at the same time a restrictive one reflecting on the
interpretation of the regime. The Court’s approaches provide intellectual assis-
tance to the efforts of European institutions in order to strengthen the three
principles (non-discrimination, objectivity and transparency) underlying the
regulation of public procurement.20 The positive approach of the Court
comprises its attempts to eliminate discrimination and non-tariff barriers in the
fields of technical standards (product specification and standardization) and
17 The term implies a firm with more than a third of its turnover made in its own
country and has enjoyed formal or informal government protection. The term has been
defined by Abravanel and Ernst (1992), ‘Alliance and acquisition strategies for
European national champions’, The McKinsey Quarterly, no. 2, pp. 45–62.
18 See Nicolaides (ed.), Industrial Policy in the European Community: A
Necessary Response to Economic Integration, Martinus Nijhoff, 1993.
19 See Communication from the European Commission to the Council, the
European Parliament, the Economic and Social Committee, and the Committee of the
Regions, ‘Working together to maintain momentum’, 2001 Review of the Internal
Market Strategy, Brussels, 11 April 2001, COM(2001)198 final. Also European
Commission, Commission Communication, Public procurement in the European
Union, Brussels, 11 March 1998, COM (98) 143.
20 See the recital of Directive 89/440, OJ L 210/1 1989 amending the original
works Directive 71/305 concerning co-ordination of procedures for the award of public
works contracts, stating that ‘…it is necessary to improve and extend the safeguards in
the directives that are designed to introduce transparency into the procedures and prac-
tices for the award of such contracts, in order to be able to monitor compliance with the
prohibition of restrictions more closely and at the same time to reduce disparities in the
competitive conditions faced by nationals of different Member States’.
Introduction 7
the selection procedures (quantitative and qualitative suitability criteria). The

Court’s jurisprudential positivism through the observance of non-discrimina-
tion and objectivity principles epitomizes the integral role of public procure-
ment in the attainment of the fundamental principles of the Treaty, specifically
the right of establishment and the freedom to provide services. On the other
hand, the Court’s restrictive approach serves the principle of objectivity, with
particular reference to the use of the award procedures for public contracts.
The above pattern which is revealed through the jurisprudence of the Court
also reflects on a strategic goal of the European judiciary: to vest the regime
wherever possible with direct effect. Arming the public procurement rules
with direct effect will enhance access to justice at national level, improve
compliance, increase the quality of the regulatory regime and finally stream-
line the public procurement process across the common market by introducing
an element of uniformity. By conferring direct effect upon the public procure-
ment directives and inviting national courts to play a prominent role in future
public procurement litigation, the Court has hinted towards its preference for
a decentralized enforcement of the public procurement regime. However, the
most important lesson law and policy makers have learnt from the Court’s
approaches to public procurement is the potential of its regulation with regard
to policy formulation at national and European levels.
In its jurisprudence, the Court has reflected on the relative importance of
public procurement to the fundamental freedoms of the common market,
namely the right of establishment and the freedom to provide services. The
approach taken by the Court revealed a positive yet restrictive interpretation
of the Directives. By conferring direct effect upon their provisions, where
appropriate and inviting national courts to play a prominent role in future
public procurement litigation, the Court has hinted towards its preference for
a decentralized enforcement of the Directives.
The Court’s jurisprudence has also played an important function in delin-
eating key concepts within the public procurement legal framework, such as
contracting authorities and award criteria. This has exposed a significant
characteristic of the Directives: flexibility. The Court developed a ratione,
which recognizes discretion in the hands of contracting authorities, discretion
which is integral to the legal framework, compatible to the attainment of the
fundamental freedoms of the common market and complementary with other
policies.
The Court abandoned the formality test in determining the relationship
between an entity and the state and instead adopted the functionality and depen-
dency tests to define contracting authorities. In addition, dualism and the dual
capacity of contracting authorities are irrelevant to the applicability of public
procurement Directives. The Court also suggested that commerciality and
competitiveness might lift the veil of compulsory tendering, thus rendering the
public procurement rules inapplicable. Finally, the Court accepted, in princi-

ple, the complementarity of relevant policies of the European integration
process, such as social policy and the protection of the environment, by
conferring discretion to contracting authorities to award public contracts by
reference to employee protection as well as socio-economic and environmen-
tal considerations.
The influence of neo-classical economic theory on public procurement
regulation has taken the relevant regime through the paces of the liberaliza-
tion of public markets within the European Union and with reference to the
World Trade Organization (WTO). Anti-trust and its remedies have played a
seemingly important role in determining the necessary competitive condi-
tions for the supply side to service the public sector. However, we have seen
the emergence of a sui generis market place where the mere existence and
functioning of anti-trust is not sufficient to achieve the envisaged objectives.
Public markets require a positive regulatory approach in order to enhance
market access. Whereas anti-trust and the neo-classical approach to economic
integration depend heavily on price competition, public procurement regula-
tion requires a system which primarily safeguards market access. Such a
regulatory system could be described as public competition law. The above
represents the first departure from the stricto sensu neo-classical perspective
of public procurement. A policy orientation has emerged mainly through the
jurisprudential approach of the regime and the willingness of the Court to
expand on the element of flexibility that is inherent in the Public Procurement
Directives.
The neo-classical versus the ordo approach reflects the frequently
rehearsed debate about the origins of anti-trust law and policy per se. The
European integration has benefited from a system where the neo-classical
approach has contributed to the functioning of an environment of workable
competition. However, consistently the rigidity of the neo-classical influence
has been diluted with policy considerations, often attributed to national policy
requirements. The reflection of the above picture is presented in public
procurement regulation, although there are certain differences: the Court has
allowed for a flexible policy-oriented application of public procurement,
where in anti-trust the Commission has eroded the strict neo-classical
approach of Article 81(1) EC (now 101(1) TFEU) with the plethora of policy
considerations under 81(3) EC (now 101(3) TFEU). Nevertheless, the similar-
ity of balancing an economic exercise with policy choice is remarkable.
The new generation of legal instruments intends to simplify and modern-
ize a regulatory regime which aims at establishing gradually a public market
in the European Union. This regime seeks to accomplish unobstructed access
to public markets through transparency of public expenditure relating to
procurement, improved market information, elimination of technical standards
Introduction 9
capable of discriminating against potential contractors and uniform applica-

tion of objective criteria of participation in tendering and award procedures.
The new regime has three principal objectives: simplification, modernization
and flexibility.
The objective of simplification has been met to a large extent. The new
public sector Directive represents a notable example of codification of supra-
national administrative law. The objective of modernization is partly met,
mainly as a result of the enormity of the newly introduced concepts. The abil-
ity of bodies governed by public law to tender for public contracts along
private undertakings is a significant development. The use of framework
procurement could assist in bringing the public sector closer to a seamless
supply chain management. The introduction of electronic procurement and the
use of information technology in public purchasing could process the logistics
of public sector purchasing faster and more efficiently. However, the intro-
duction of the competitive dialogue to facilitate the award of complex projects
such as public-private partnerships and trans-European networks leaves many
practical questions over its nature and conduct unanswered. This represents
the biggest problem for the new regime. The exceptional nature of the compet-
itive dialogue and its hierarchy with other award procedures (the wording of
the public sector Directive puts the procedure at a par with the negotiated
procedures with prior advertisement), the discretion of contracting authorities
to initiate the procedure (who is to determine the nature of a particularly
complex contract and the inability of the contracting authorities to draw
precise specifications and the contract’s financial and legal make-up), the
internal structure and conduct of the procedure (the confusion surrounding the
different stages pre-tender and post tender), the response of the private sector
(the predictably very high costs in participating), the degree of competition
achieved (there is great potential for post tender negotiations) and finally the
overall value for money results (in many instances the completive dialogue is
less flexible than the negotiated procedures) are pertinent questions that have
not been addressed by the new public procurement regime.
The objective of flexibility is the surprise element of the new regulatory
package. The relaxation of the competitive tendering regime and the disen-
gagement of the public procurement rules in industries that operate under
competitive conditions in the utilities sectors indicate the links between
procurement regulation and anti-trust. The non-applicability of the regime to
telecommunications entities is an important development indicative of the
future legal and regulatory blueprints. A rather disappointing feature of the
new regime is the lack of clarity over the potential use of socio-economic and
environmental considerations as part of the award criteria. Contrary to the
Court’s jurisprudential inferences, the new Directives do not confer the much-
needed flexibility in this matter to contracting authorities, thus inviting the
Court to continue its rule of reason approach into the legitimacy of policies,
other than economic ones, through public procurement regulation.
The regulation of public procurement reflects on two opposite dynamics:
one of a community-wide orientation and one of national priorities. The influ-
ence of neo-classical economic theory on public procurement regulation has
taken the relevant regime through the paces of the liberalization. However, we
have witnessed the emergence of a sui generis market place where the mere
existence and functioning of anti-trust is not sufficient to achieve the envis-
aged objectives. Public markets require a positive regulatory approach in order
to enhance market access. Whereas anti-trust and the neo-classical approach to
economic integration depend heavily on price competition, public procure-
ment regulation requires a system which primarily safeguards market access.
In the author’s argument, such regulatory system could be described as public
competition law.
The above scenario represents a departure from the stricto sensu neo-clas-
sical perspective of public procurement. A policy orientation has emerged
mainly through the jurisprudential approach of the regime and the willingness
of the Court to expand on the element of flexibility that is inherent in the
public procurement Directives. The Court has allowed for a flexible policy-
oriented application of public procurement, where in anti-trust the
Commission has eroded the strict neo-classical approach of controlling market
power with the plethora of policy considerations.
Litigation and jurisprudential inferences will be extremely important in
understanding the thrust of the new regime. The role of the Court has been
instrumental in shaping many of the newly introduced concepts and in the
future will be invaluable in interpreting the new regime and pronouncing on
the compatibility of national provisions with acquis communautaire.
1. Public procurement and the single
market
PUBLIC PROCUREMENT AND THE CONCEPT OF

PUBLIC MARKETS
The main reason for regulating public sector and utilities procurement is to
bring their respective markets in parallel to the operation of private markets.
European policy makers have recognized the distinctive character of public
markets and focused on establishing conditions similar to those that control
the operation of private markets. The public markets reflect an economic equa-
tion where the demand side is represented by the public sector at large and the
utilities, whereas the supply side covers the industry.
The state and its organs would enter the market place in pursuit of public
interest.1 However, the activities of the state and its organs do not display the
commercial characteristics of private entrepreneurship, as the aim of the
public sector is not the maximization of profits but the observance of public
interest.2 This fundamental difference emerges as the ground for the creation
of public markets where public interest substitutes profit maximization.3
However, further variances distinguish private from public markets. These
focus on structural elements of the market place, competitiveness, demand
conditions, supply conditions, the production process, and finally pricing and
1 See Valadou, La notion de pouvoir adjudicateur en matière de marchés de

travaux, Semaine Juridique, 1991, Ed. E, No.3; Bovis, La notion et les attributions
d’organisme de droit public comme pouvoirs adjudicateurs dans le régime des marchés
publics, Contrats Publics, September 2003.
2 Flamme et Flamme, Enfin l’Europe des Marchés Publics, Actualité Juridique
– Droit Administratif, 1989.
3 On the issue of public interest and its relation with profit, see cases C-223/99,
Agora Srl v. Ente Autonomo Fiera Internazionale di Milano and C-260/99, Excelsior
Snc di Pedrotti Runa & C v. Ente Autonomo Fiera Internazionale di Milano, [2001]
ECR 3605; C-360/96, Gemeente Arnhem Gemeente Rheden v. BFI Holding BV, [1998]
ECR 6821; C-44/96, Mannesmann Anlangenbau Austria AG et al. v. Strohal
Rotationsdurck GesmbH, [1998] ECR 73.
11
risk. They also provide for an indication as to the different methods and
approaches employed in their regulation.4
Private markets are generally structured as a result of competitive pressures
originating in the interaction between buyers and supplier and their configura-
tion can vary from monopoly or oligopoly conditions to models representing
perfect competition. Demand arises from heterogeneous buyers with a variety
of specific needs, is based on expectations and is multiple for each product.
Supply, on the other hand, is offered through various product ranges, where
products are standardized using known technology, but constantly improved
through research and development processes. The production process is based
on mass-production patterns and the product range represents a large choice
including substitutes, whereas the critical production factor is cost level. The
development cycle appears to be short- to medium-term and finally, the tech-
nology of products destined for the private markets is evolutionary. Purchases
are made when an acceptable balance between price and quality is achieved.
Purchase orders are multitude and at limited intervals. Pricing policy in private
markets is determined by competitive forces and the purchasing decision is
focused on the price-quality relation, where the risk factor is highly present.
On the other hand, public markets tend to be structured and to function in
a different way. The market structure often reveals monopsony characteris-
tics.5 In terms of its origins, demand in public markets is institutionalized and
operates mainly under budgetary considerations rather than price mechanisms.
It is also based on fulfilment of tasks (pursuit of public interest) and it is single
for many products. Supply also has limited origins, in terms of the establish-
ment of close ties between the public sector and industries supplying it and
there is often a limited product range. Products are rarely innovative and tech-
nologically advanced and pricing is determined through tendering and negoti-
ations. The purchasing decision is primarily based upon the life-time cycle,
reliability, price and political considerations. Purchasing patterns follow
tendering and negotiations and often purchases are dictated by policy rather
than price/quality considerations.
Article 106 TFEU6 (formerly Article 90 EEC) represents the legal corner-
4 See Bovis, The Liberalisation of Public Procurement in the European Union

and its Effects on the Common Market, Ashgate, 1998, Chapter 1.
5 Monopsony is the reverse of monopoly power. The state and its organs often
appear as the sole outlet for an industry’s output.
6 Article 106 TFEU reads: ‘…1. In the case of public undertakings and under-
takings to which Member States grant special or exclusive rights, Member States shall
neither enact nor maintain in force any measure contrary to the rules contained in this
Treaty, in particular to those rules provided for in Article 7 and Articles 85 to 94 [now
Articles 12 and 81–89 EC].
2. Undertakings entrusted with the operation of services of general economic interest
Public procurement and the single market 13
stone7 of the competence of Member States to provide, organize and deliver

public services. The term public service often refers to a service which is
offered to the general public, or highlights that a service has been assigned a
specific role in the public interest, or refers to the ownership or status of the
entity providing the service. In the latter situation, public service fuses with
the concept of public sector which covers the state and its organs, bodies
governed by public law and undertakings controlled by public authorities. Two
models for the treatment of public services have been developed, based on
different theoretical and conceptual values. On the one hand, public services
which capture general needs of the public are delivered through market-based
mechanisms where the public sector interfaces or competes with private sector
undertakings; this model is based on Article 106 TFEU, sectoral primary and
secondary legislation, as well as state aid rules. On the other hand, public
services which are described as essential facilities (for example defence, polic-
ing) should be sheltered from competition in order to ensure the integrity of
their delivery.8 The provision of these types of public services is the preroga-
tive of the state and not affected by the thrust of EU law.9
Although the term public services does not feature in the acquis commu-
nautaire relevant to Article 106 TFEU, surrogate concepts have attributed in
constructing a notion where the state is expected or even obliged10 to enter the
market place in order to deliver directly or organize the delivery of public
services. These surrogate concepts are reflected in the terms of public service
obligations and universal service obligations, which have supported the liber-
alization process of sectoral policies of the European Union.11 The term public
or having the character of a revenue-producing monopoly shall be subject to the rules

contained in this Treaty, in particular to the rules on competition, in so far as the appli-
cation of such rules does not obstruct the performance, in law or in fact, of the partic-
ular tasks assigned to them. The development of trade must not be affected to such an
extent as would be contrary to the interests of the Community.
3. The Commission shall ensure the application of the provisions of this Article and
shall, where necessary, address appropriate directives or decisions to Member States.’
7 J.L. Buendia Sierra, Exclusive Rights and State Monopolies under EC Law,
Oxford University Press, 1999, p. 330.
8 See T. Prosser, The Limits of Competition Law, Oxford University Press,
2005; also C. Graham, ‘Essential Facilities and Services of General Interest’, Diretto e
Politiche dell’Unione Europea, 2007, p. 29.
9 A. Moriceau, ‘Services d’intérêt économique general et valeurs communes’,
Revue du Marché Commun et de l’Union Europénne, Number 519, 2008, p. 358.
10 M. Ross, ‘Article 16 E.C. and services of general interest: from derogation to
obligation?’, European Law Review, 2000, pp. 22–38.
11 C. Bovis, ‘Competition and Telecommunications’, Chapter 18, Encyclopedia
of Competition Law, Sweet and Maxwell, 2007; also C. Bovis, ‘The Application of
Competition Rules to the European Union Transport Sectors’, Columbia Journal of
European Law, Volume 11, Issue 5, 2005, pp. 1–49.
service obligations refers to specific quality and price requirements that are
imposed by public authorities on the provider of the service in order to ensure
that certain public interest objectives applicable at Community, national or
regional level are met.12 The term universal service obligations denotes
contractual or regulatory requirements imposed by public authorities upon
undertakings with a view to maintaining regularity and affordability13 in the
provision of the relevant services.14 Alongside public service obligations and
universal service obligations, Article 106(2) TFEU has introduced the term of
services of general economic interest, a term which its significance has been
augmented by virtue of Article 16 EC.15 The term services of general
economic interest is not defined further in the Treaty or in secondary legisla-
tion. The term refers to services of an economic nature which the Member
States or the Community subject to specific public service obligations or
universal service obligations by virtue of a general interest criterion. Thus,
services of general economic interest cover services provided by utilities or
network industries such as transport, water, postal services, energy and
communications but also extend to any other economic activities which may
be subject to public service obligations.
Services of general interest are in particular mentioned in Protocol No 26
to the TFEU. However, the latter does not define the concept, which in prac-
tice refers to services, whether ‘economic’ or not, that the Member States
regard as being of general interest, and which they therefore subject to specific
public service obligations. The concept covers services of general economic
interest (SGEIs) that fall within the scope of the TFEU and non-economic
services of general interest, which are not subject to the rules in the TFEU.
12 In the context of air transport, public service obligation is defined in Council

Regulation 2408/92 as any obligation imposed upon an air carrier to take, in respect
of any route which it is licensed to operate by a Member State, all necessary measures
to ensure the provision of a service satisfying fixed standards of continuity, regularity,
capacity and pricing, which standards the air carrier would not assume if it were solely
considering its economic interest.
13 W. Sauter, ‘Services of general economic interest and universal service in EU
Law’, European Law Review, 2008, p. 172.
14 In the context of the Universal Services Directive EC 2002/22, universal
service obligations are services made available to the public at the quality specified to
all end-users in their territory, independently of geographical location, and, in the light
of specific national conditions, at an affordable price.
15 Article 16 EC reads … Without prejudice to Articles 77, 90 and 92 [now
Articles 73, 106, and 87 TFEU], and given the place occupied by services of general
economic interest in the shared values of the Union as well as their role in promoting
social and territorial cohesion, the Community and the Member States, each within
their respective powers and within the scope of application of this Treaty, shall take
care that such services operate on the basis of principles and conditions which enable
them to fulfil their missions.
The concept of SGEI appears in Articles 14 and 106(2) TFEU and in

Protocol No 26 to the TFEU, but it is not defined in the TFEU or in secondary
legislation. In practice, the term refers in general to services of an economic
nature that the public authorities in the Member States at national, regional or
local level, depending on the allocation of powers between them under
national law, subject to specific public service obligations through an act of
entrustment, on the basis of a general-interest criterion and in order to ensure
that the services are provided under conditions which are not necessarily the
same as prevailing market conditions. The Court has established that SGEIs
are services that exhibit special characteristics as compared with those of other
economic activities.16 The concept may apply to different situations and terms,
depending on the policy approach of Member States, and EU law does not
create any obligation to designate formally a task or a service as a service of
general economic interest. If the content of an SGEI, i.e. the public service
obligations, is clearly identified, it is not necessary for the service in question
to be called an SGEI.
The same treatment is reserved for the concept of social services of general
interest (SSGIs) that are economic in nature. The concept of SSGI is not
defined in the TFEU or in secondary legislation. However, the Commission17
identified two main groups of SSGIs in addition to health services: first, statu-
tory and complementary social security schemes, organized in various ways
(mutual or occupational organizations), covering the main risks of life, such as
those linked to health, ageing, occupational accidents, unemployment, retire-
ment and disability; and secondly, other essential services provided directly to
the person.
These services that play a preventive and social cohesion role consist of
customized assistance to facilitate social inclusion and safeguard fundamental
rights. They comprise, first of all, assistance for persons faced by personal
challenges or crises (such as debt, unemployment, drug addiction or family
breakdown). Secondly, they include activities to ensure that the people
concerned are able to completely reintegrate into society (rehabilitation,
language training for immigrants) and, in particular, return to the labour
market (occupational training and reintegration). These services complement
and support the role of families in caring for the youngest and oldest members
of society in particular. Thirdly, these services include activities to integrate
16 See cases C-179/90, Merci convenzionali porto di Genova, [1991] ECR I-

5889, paragraph 27; C-242/95, GT-Link A/S, [1997] ECR I-4449, paragraph 53; and C-
266/96, Corsica Ferries France SA, [1998] ECR I-3949, paragraph 45.
17 See EU Communication Implementing the Community Lisbon programme:
Social services of general interest in the European Union COM (2006) 177 final, 26
April 2006.
people with long-term health or disability problems. Fourthly, they also

include social housing, which provides housing for disadvantaged citizens or
socially less advantaged groups.
SSGIs may be of an economic or non-economic nature, depending on the
activity under consideration. The fact that the activity in question is termed
‘social’ is not of itself enough18 for it to avoid being regarded as an ‘economic
activity’ within the meaning of the Court’s case law. SSGIs that are economic
in nature are SGEIs. Public authorities in Member States, whether at national,
regional or local level, depending on the allocation of powers under national
law, have considerable discretion in defining what they regard as services of
general economic interest.19
The scope and organization of SGEIs vary considerably amongst Member
States, depending on the history and culture of public intervention in each
Member State. SGEIs are therefore very diverse and disparities may exist in
relation to users’ needs and preferences because of different geographical,
social and cultural situations. Accordingly, it is essentially the responsibility of
the public authorities at national, regional or local level to decide the nature
and scope of a service of general interest. In accordance with the principles of
subsidiarity and proportionality, the EU takes action only where necessary and
within the limits of the powers conferred on it by the TFEU. Its action respects
the diversity of situations in the Member States and the roles devolved to
national, regional and local authorities to ensure the well-being of their citi-
zens and promote social cohesion, while guaranteeing democratic choices in
relation to the level of the quality of services, for example.
In sectors which have been harmonized at EU level,20 and where objectives
18 See joined cases C-180/98 to C-184/98, Pavlov, [2000] ECR I-6451, para-
graph 118; case C-218/00, INAIL,,[2002] ECR I-691, paragraph 37; and case C-355/00,
Freskot, [2003] I-5263.
19 See case T-17/02, Fred Olsen, [2005] ECR II-2031, paragraph 216; case T-
289/03, BUPA and Others v. Commission, [2008] ECR II-81, paragraphs 166–169; case
T-309/04, TV2, [2008] ECR II-2935, paragraphs 113 et seq.
20 For example, telecommunications and the postal and energy sectors have been
harmonized at Union level. See Directive 2002/22/EC of the European Parliament and
of the Council of 7 March 2002 on universal service and users’ rights relating to elec-
tronic communications networks and services (Universal Service Directive), OJ L 108,
24.4.2002, p. 51 (as amended by Directive 2009/136/EC, OJ L 337, 18.12.2009, p. 11);
Directive 97/67/EC of the European Parliament and of the Council of 15 December
1997 on common rules for the development of the internal market of Community postal
services and the improvement of quality of service, OJ L 15, 21.1.1998, p. 14 (as
amended by Directives 2002/39/EC, OJ L 176, 5.7.2002, p. 21 and 2008/06/EC, OJ L
52, 27.2.2008, p. 3); Directive 2009/72/EC of the European Parliament and of the
Council of 13 July 2009 concerning common rules for the internal market in electric-
ity, OJ L 211, 14.8.2009, p. 55.
of general interest have been taken into account,21 the Member States’ discre-
tion cannot be exercised contrary to the rules governing such harmonization.
Where Union harmonization rules refer only to certain specific services, the
Member States have considerable discretion in defining additional services as
SGEIs, subject to the review of the European Commission and the EU
Courts.22
It is entirely up to the public authorities to decide whether to provide a
service themselves or to entrust it to a third party (externalization). The public
procurement rules only apply if the public authority decides to externalize the
service provision by entrusting it to a third party against remuneration.
One of the fundamental characteristics of public services is their economic
nature. The funding of public services, which may emerge through different
formats such as payment or remuneration under a contract, payment of annual
subsidies, preferential fiscal treatment or lower social security contributions to
an entrusted undertaking, reveals such a characteristic. This means that public
services have a cost and a value attached to them. Cost reflects upon capital
considerations, whereas value reflects upon revenue considerations. Even the
provision of social services of general interest23 which include health services,
long-term care, social security, employment services, and social housing is
compatible with their economic character assessment.24
However, public services lack industrial or commercial character. The ECJ
ruled25 that the non-commercial or industrial character of a service is a neces-
sary criterion intended to clarify needs in the general interest. The Court
recognized that there might be needs of general interest, which have an indus-
trial and commercial character and that it is also possible private undertakings
can meet needs of general interest, which do not have industrial and commer-
cial character. Nevertheless, the test for needs in the general interest which do
21 See case C-206/98, Commission v. Belgium, [2000] ECR I-3509, paragraph

45.
22 See case T-17/02, Fred Olsen, [2005] ECR II-2031, paragraph 216; case T-
289/03, BUPA and Others v. Commission, [2008] ECR II-81, paragraphs 165 et seq.
Moreover, the Member States’ discretion cannot be exercised in the face of the applic-
able harmonization rules.
23 European Commission, Green Paper on Services of General Interest, op. cit.
24 European Commission, Communication from the Commission to the
European Parliament, the Council, the European Economic and Social Committee and
the Committee of the Regions, ‘A single market for 21st century Europe – Services of
general interest, including social services of general interest: a new European commit-
ment’, COM(2007) 725. See also, C. Joerges and F. Rödl, ‘‘‘Social Market Economy’’
as Europe’s Social Model?’ EUI Working Paper LAW No. 2004/8, European University
Institute, 2004.
25 See case C-360/96, Gemeente Arnhem Gemeente Rheden v. BFI Holding BV,
[1998] ECR 6821.
not possess industrial or commercial character is that the state or other public
authorities choose themselves to meet these needs or to have a decisive influ-
ence over their provision. In parallel, the Court indicated26 that if an activity
which meets general needs is pursued in a competitive environment, there is a
strong indication that it possesses commercial characteristics.
The absence of commerciality from a public service or the absence of
competitive forces within the markets it is delivered represents a strong indi-
cation of the sui generis market place public services are delivered or orga-
nized. The first implication of such nature is the non-applicability of general
competition law. In addition to the provisions of Article 106 TFEU, sector-
specific regulation has removed the treatment of financing public services
from the general provisions of competition law and placed it within the state
aid regime.27 Furthermore, the sui generis nature of public service markets
provide the conceptual bridge to engage the public procurement regime as a
guardian of the principles of accountability and transparency in the delivery of
services of ‘general interest having non industrial or commercial charac-
ter’.28
State aid acquis and jurisprudence have validated that services of general
economic interest, which embrace the specific concept of public service oblig-
ations29 project certain characteristics, such as the compensatory nature of
26 See case C-223/99, C-223/99, Agora Srl v. Ente Autonomo Fiera

Internazionale di Milano and C-260/99, Excelsior Snc di Pedrotti Runa & C v. Ente
Autonomo Fiera Internazionale di Milano, [2001] ECR 3605.
27 C. Bovis, ‘Financing services of general interest, public procurement and state
aids: The delineation between market forces and protection’, European Law Journal,
Vol.11, No.1, 2005, pp. 79–109.
28 The term industrial and commercial character features in the public procure-
ment acquis and corresponds to the presence of market competitiveness supported
through the factors of profitability and demand substitutability; see C. Bovis,
‘Redefining Contracting Authorities under the EC Public Procurement Directives: An
Analysis of the case C-44/96, Mannesmann Anlangenbau Austria AG et al. v. Strohal
Rotationsdurck GesmbH’, Common Market Law Review, Vol. 39, 1999, pp. 41–59.
29 Services of general economic interest and public service obligations concep-
tually merge through the medium of public service contract. See Regulation 1893/91,
OJ L 169, 1991. The concept of public service contracts, which covers contractual rela-
tions between competent authorities of Member State and undertakings and encapsu-
lates contractualized obligations to provide adequate services to the public, introduces
the need of the principles of transparency and accountability in the selection process
and methods of the entrusted undertaking to provide such services. A public service
contract in the transport sector may cover: i) transport services satisfying fixed stan-
dards of continuity, regularity, capacity and quality; ii) additional transport services; iii)
transport services at specified rates and subject to specified conditions, in particular for
certain categories of passenger or on certain routes; iv) adaptation of services to actual
requirements.
their reimbursement and the need for market-oriented prerequisites for the
selection of the entrusted undertaking for their delivery. These characteristics
coincide conceptually with the repercussions of the sui generis market place
of public services: their placement within state aid regulation and the need of
the existence of public procurement as a competition benchmark.
This is reflected in the Commission’s vision to utilize state aid regulation
as a platform for the provision of essential public services through public
service contracts.30 The Liikenne31 ruling verifies the above approach, as the
essential character of public service obligations for the provision of adequate
services must be assessed by reference to elements that exceed the stricto
sensu commerciality of the venture and instead must demonstrate a combina-
tion of factors which include the public interest, substitutability of services,
price comparisons and the competitive environment in the relevant market.
The leap from the stricto sensu commercial assessment of a venture which
embraces public service obligations to the elaborate appraisal of substitutabil-
ity assessment under a public service contract reveals that the competent
authorities of Member States will choose the lowest cost service, if all avail-
able services can be offered under equivalent conditions. Such observation
brings into play the compensatory characteristics of services of general
economic interest and public service obligations.
The compensatory element of public service contracts is clearly demon-
strable in air transport services, where public service obligations32 can only be
30 See the Commission’s XXIII Competition Report, point 534.

31 See case C-412/96, Kainuun Liikenne Oy, [1998] ECR 1515. The case elabo-
rated on the ability of transport undertakings which are subject to a public service
obligation to apply for the termination of such an obligation in whole or in part, under
Article 4 of Regulation 1191/69. There is discretion on the part of Member States to
grant such requests, which entails that they can refuse even in cases that the pursuit of
public service obligations entails economic disadvantages for the relevant transport
operator. However, such a refusal can only be based on the necessity of maintaining the
provision of adequate transport services. The Court maintained that such necessity
must be assessed having regard to the public interest; the possibility of having recourse
to other forms of transport and the ability of such forms to meet the transport needs
under consideration; the transport rates and conditions which can be quoted to users.
The Court implied that the competent authorities will choose the service that secures
the lowest costs for the community if other services can be offered for equivalent
conditions.
32 The concept of public service obligation within the context of the air transport
regime is defined in Regulation 2408/92 on access for air carriers to intra-Community
air routes as … any obligation imposed upon an air carrier to take, in respect of any
route which it is licensed to operate by a Member State, all necessary measures to
ensure the provision of a service satisfying fixed standards of continuity, regularity,
capacity and pricing, standards which the air carrier would not assume if it were solely
considering its economic interest.
conferred to operators by reference to a specific procedure, which links their

compensation with a selection process based on a public tender.33 The signif-
icance of this process is such as to allow Member States to determine the value
for a public service by taking into account both the users’ interests and costs
incurred by the relevant operator. The criteria for calculating the compensation
involve only factors relevant to the operating deficit incurred on a specific
route,34 including a reasonable remuneration for capital employed.35 Thus, a
public service contract to perform public service obligations is awarded to the
operator which requires the lowest financial compensation.36 The compensa-
tion in the form of a public service contract awarded through the tendering
process reveals a neutral commercial operation between the relevant Member
State and the selected air carrier. The neutrality of such transaction is based on
the reimbursement limited solely to losses sustained because of the operation
of a specific route and does not bring about any special benefit for the air
carrier.37 Compensation of costs incurred by a carrier which has not been
selected according to the tendering process or compensation which is not
calculated on the basis of the lowest cost criterion would be assessed under the
general state aid rules.38 Compensation will be considered state aid if it diverts
significant volumes of traffic or allows carriers to cross-subsidize routes on
which they compete with other Community air carriers.39
33 Community rules on public procurement contracts do not apply to the award-

ing by law or contract of exclusive concessions, which are exclusively ruled by the
procedure provided for pursuant to Article 4(1) of Regulation 2408/92.
34 The implementation of public service obligation must be transparent and the
selected transport operators are expected to account annually for the relevant costs,
including fixed costs and revenues attributed to the relevant routes.
35 Although Article 4(1)(f) of Regulation 2408/92 refers to the compensation
required as just one of the criteria to be taken into consideration for the selection of
submissions, the Commission considers that the level of compensation should the main
selection criterion, as other elements such as adequacy, fare prices and standards are
constituent elements of the public service obligations themselves.
36 See cases C-301/87, France v. Commission, [1990] ECR I, p. 307; C-142/87,
Belgium v. Commission, [1990] ECR I, p. 959.
37 See case C-173/73, Italy v. Commission, [1974] ECR, p. 709.
38 Reimbursement for public services to the Atlantic islands (Azores) are
excluded from the scope of Regulation 2408/92, but are subject to Articles 87 and 88
EC. See Commission Decision of 6 July 1994, case C-7/93 on reimbursement of the
deficit sustained by TAP on the routes to the Atlantic islands, OJ C 178, 30.6.1993.
39 Article 4(1)(i) of Regulation 2408/92 obliges the Member States to take the
measures necessary to ensure that any decision to award public service obligations can
be reviewed effectively. The Commission may carry out an investigation and take a
decision in case the development of a route is being unduly restricted under Article 4(3)
of the Regulation. However, the Commission’s powers under the Regulation are with-
out prejudice to its exclusive powers under the state aids rules of the Treaty. In case
PUBLIC PROCUREMENT REGULATION AND

ANTI-TRUST
The regulatory weaponry for private markets evolves around anti-trust law and
policy, where the influence of the neo-classical economic approach has been
evident.40 Public markets are fora where the structural and behavioural reme-
dial tools of competition law also apply. However, they focus on the supply
side (the industry) which ipso facto is subject to the relevant rules relating to
cartels and abusive dominance.
There is a conceptual difference relating to the application of anti-trust in
public markets. The demand side (the public sector, the state and its organs)
can hardly be embraced by its remit, except in the case of state aid and illegal
subsidies. In private markets, anti-trust law and policy seek to punish cartels
and the abusive dominance of undertakings. The focus of the remedial instru-
ments of anti-trust is the supply side, which is conceived as the commanding
part in the supply/demand equation due to the fact that it instigates and often
controls demand for a product. In private markets, the demand side of the
equation (the consumers at large) is susceptible to exploitation and the market
equilibria are prone to distortion as a result of collusive behaviour of under-
takings or abusive monopoly position. On the other hand, the structure of
public markets reveals a different picture. In the supply/demand equation, the
dominant part appears to be the demand side (the state and its organs as
purchasers), which initializes demand through purchasing, where the supply
side (the industry) fights for access to the relevant markets.
In public markets, market segmentation occurs as a result of concerted
practices attributed to the demand side. Since such concerted practices of
Member States and their contracting authorities (e.g. excluding foreign
competition, application of buy-national policies, and application of national
standards policies) focus on the origin of a product or a service or the nation-
ality of a contractor, market segmentation in public markets tends to possess
geographical characteristics and results in the division of the European public
market into different national public markets.
The regulation of public markets requires more than the control of the
supply side through anti-trust. The primary objective is market access and the
there is clear evidence that the Member State has not selected the best offer, the
Commission may request information from the Member State in order to examine
whether the award of a public service obligation includes, in addition to their compen-
sation, state aid elements. Such elements are likely to occur where a Member State has
selected not the lowest offer in relation to the financial compensation to be paid to the
air carrier.
40 See Posner, Antitrust Law, 2nd Edition, Chicago, 2000.
abolition of barriers and obstacles to trade. Therefore, the regulation aims at

the demand side, which effectively controls access and can segment the rele-
vant market. Whereas price competition is the main characteristic of anti-
trust,41 public procurement regulation pursues firstly market access. This
perspective reflects on the sui generis nature of public markets and has
provided ground for developing a regulatory system which is strongly influ-
enced by neo-classical economics, whilst at the same time integrating the rele-
vant market. Such system has also strong public law characteristics, to the
extent that it has been branded as public competition law (droit public de la
concurrence).42
The economic effects of public procurement regulation reflect with great
clarity its links with anti-trust regulation. Viewing public procurement from
the prism of an economic exercise, its regulation displays strong neo-classical
influences. Such influences embrace the merit of efficiency in the relevant
market and the presence of competition, mainly price competition, which
would create optimal conditions for welfare gains. The connection between
public procurement regulation and the neo-classical approach to economic
integration in the common market is reflected upon the criterion for awarding
public contracts based on the lowest offer.43 This feature of the public procure-
ment legal framework focuses on price competition being inserted into the
relevant markets, and assisted by the transparency requirement to advertise
public contracts above certain thresholds44 it would result in production and
41 See Monti, ‘Article 81 EC and Public Policy’, 39 Common Market Law

Review, 2002, where it is argued that public policy considerations balance the legality
test of ab initio illegal restrictive agreements by virtue of Article 81(1)(2) EC with a set
of requirements contained in Article 81(3) EC and also developed by the EC
Commission in its jurisdictional capacity to provide individual exemptions.
42 See Bazex, Le droit public de la concurrence, RFDA, 1998; Arcelin,
L’enterprise en droit interne et communautaire de la concurrence, Paris, Litec, 2003;
Guézou, Droit de la concurrence et droit des marches publics: vers une notion trans-
verale de mise en libre concurrence, Contrats Publics, Mars 2003.
43 See Article 26(1)(a) of Directive 93/36; Article 30(1)(a) of Directive 93/37;
Article 34(1)(b) of Directive 93/38; Article 36(1)(b) of Directive 92/50.
44 The thresholds laid down by the Directives are as follows:
€5 m for all work and construction projects (Article 3(1) of Directive 93/37; Article
14(c) of Directive 93/38).
€200 000 for supplies contracts within the European Union (Article 5(1)(a) of Directive
93/36) and €136 000 for supplies contracts from third countries (Article 5(1)(c) of
Directive 93/36) which participate in the WTO Government Procurement Agreement.
€600 000 for supplies of telecommunication equipment under the Utilities Directive
(Article 14(b) of Directive 93/38) and €400 000 for all other supplies contracts
awarded by public utilities (Article 14(a) of Directive 93/38).
€200 000 for services contracts (Article 7(1) of Directive 92/50).
distribution efficiencies and drive the market towards an optimal allocation of

resources.
The lowest offer as an award criterion of public contracts is a quantitative
method of achieving market equilibrium between the demand and supply
sides. The supply side competes in costs terms to deliver standardized (at least
in theory) works, services and goods to the public sector. Price competition is
bound to result in innovation in the relevant industries, where through invest-
ment and technological improvements, firms could reduce production and/or
distribution costs. The lowest offer criterion could be seen as the necessary
stimulus in the relevant market participants in order to improve their compet-
itive advantages.
The lowest offer award criterion reflects on, and presupposes low barri-
ers to entry in a market and provides for a type of predictable accessibility
for product or geographical markets. This is a desirable characteristic in a
system such as public procurement regulation which is charged with inte-
grating national markets and creating a common market for public contracts
which is homogenous and transparent. In addition, the low barriers to enter
a market, together with the competitive and transparent price benchmarking
for awarding public contracts through the lowest offer criterion would
inevitably attract new undertakings in public procurement markets. This can
be seen as an increase of the supply-side pool, a fact which would provide
the comfort and the confidence to the demand side (the public sector) in rela-
tion to the competitive structure of an industry. Nevertheless, the increased
number of participants in public tenders could have adverse effects.
Assuming that the financial and technical capacity of firms is not an issue,45
the demand side (the public sector) will have to bear the cost of tendering
and in particular the costs relating to the evaluation of offers. The more
participants enter the market for the award of public contracts, the bigger the
costs attributed to the tendering process would have to be borne by the
public sector.
45 The demand side often omits risk assessment tests during the evaluation
process. The Directives remain vague as to the methods for assessing financial risk,
leaving a great deal of discretion in the hands of contracting authorities. Evidence of
financial and economic standing may be provided by means of references including: i)
appropriate statements from bankers; ii) the presentation of the firm’s balance sheets or
extracts from the balance sheets where these are published under company law provi-
sions; and iii) a statement of the firm’s annual turnover and the turnover on construc-
tion works for the three previous financial years. See case C-27/86, Constructions et
Enterprises Industrielles SA (CEI) v. Association Intercommunale pour les Autoroutes
des Ardennes; case C-28/86, Ing.A. Bellini & Co. S.p.A. v. Regie de Betiments; case C-
29/86, Ing.A. Bellini & Co. S.p.A. v. Belgian State, [1987] ECR 3347.
However, competitiveness in an industry is not reflected solely by reference

to low production costs.46 Efficiencies which might result through production
or distribution innovations are bound to have a short-term effect on the market
for two reasons: if the market is bound to clear with reference to the lowest
price, there would be a point where the quality of deliverables is compromised
(assuming a product or service remains standardized). Secondly, the viability
of industries which tend to compete primarily on cost basis is questionable.
Corporate mortality will increase and the market could revert to oligopolistic
structures.
The welfare gains emanating from a neo-classical approach of public
procurement regulation encapsulate the actual and potential savings the public
sector (and consumers of public services at large) would enjoy through a
system that forces the supply side to compete on costs (and price). These
gains, however, must be counterbalanced with the costs of tendering (admin-
istrative and evaluative costs borne by the public sector), the costs of compe-
tition (costs related to the preparation and submission of tender offers borne
by the private sector) and litigation costs (costs relevant to prospective litiga-
tion borne by both aggrieved tenderers and the public sector). If the cumula-
tive costs exceed any savings attributed to lowest offer criterion, the welfare
gains are negative.
A neo-classical perspective of public procurement regulation reveals the
zest of policy makers to establish conditions which calibrate market clearance
on price grounds. Price competitiveness in public procurement raises a number
of issues with anti-trust law and policy. If the maximization of savings is the
only (or the primary) achievable objective for the demand side in the public
procurement process, the transparent/competitive pattern cannot provide any
safeguards in relation to under-priced (and anti-competitive) offers.
The price-competitive tendering reflects on the dimension of public
procurement regulation as an economic exercise. On the one hand, when the
supply side responds to the perpetually competitive purchasing patterns by
lowering prices, the public sector could face a dilemma: what would be the
lowest offer it can accept. The public sector faces a considerable challenge in
evaluating and assessing low offers other than ‘abnormally low’ ones.47 It is
46 See Lawton (ed), Industrial Policy and Competitiveness in Europe,

Macmillan, 1998.
47 The European rules provide for an automatic disqualification of an ‘obviously
abnormally low offer’. The term has not been interpreted in detail by the judiciary at
European and domestic levels and serves rather as a ‘lower bottom limit’. The contract-
ing authorities are under duty to seek from the tenderer an explanation for the price
submitted or to inform him that his tender appears to be abnormally low and to allow
a reasonable time within which to submit further details, before making any decision
as to the award of the contract. See case C-76/81, SA Transporoute et Travaux v.
difficult to identify dumping or predatory pricing disguised behind a low offer

for a public contract. On the other hand, even if there is an indication of anti-
competitive price fixing, the European public procurement rules do not
provide for any kind of procedure to address the problem. The anti-trust rules
take over and the suspension of the award procedures (or even the suspension
of the contract itself) would be subject to a thorough and exhaustive investi-
gation by the competent anti-trust authorities.
Evidence of the neo-classical approach in public procurement regulation
can be found in Guidelines48 issued by the European Commission. The
Commission adopted a strict interpretation of the rules and focused Member
States on an economic approach in the application of the public procurement
Directives. The Commission has championed the neo-classical approach for
two reasons: first, to bring an acceptable level of compliance of Member
States with the public procurement regime and secondly, to follow the assump-
tions made through the internal market process that procurement represents a
significant non-tariff barrier and its regulation can result in substantial savings
for the public sector.
It is interesting to follow the Commission’s approach49 in litigation before
the European Court of Justice, where as an applicant in compliance proce-
dures, or as an intervening party in reference procedures, it consistently
regarded public procurement regulation as an economic exercise. The back-
bone of such approach has been the price approach to the award of public
contracts, predominantly through the lowest offer award criterion, but also
through the most economically advantageous offer criterion, where factors
other than price can play a role in the award process. Even in the latter cate-
gory, where some degree of flexibility is envisaged by the legal regime, the
Commission has been sceptical of any attempts to apply so-called ‘qualitative’
factors in the award process. Along these lines, the European Court of Justice
pursued a neo-classical approach of public procurement regulation through its
rulings relating to i) compliance procedures against Member States for not
Minister of Public Works, [1982] ECR 457; case C-103/88, Fratelli Costanzo S.p.A. v.
Comune di Milano, [1989] ECR 1839; case C-296/89, Impresa Dona Alfonso di Dona
Alfonso & Figli s.n.c. v. Consorzio per lo Sviluppo Industriale del Comune di
Monfalcone, [1991] ECR 2967; case C-285/99 & 286/99, Impresa Lombardini SpA v.
ANAS, [2001] ECR 9233.
48 See Commission Communication, Public Procurement, 22 September 1989,
C 311 89.
49 See the Commission’s arguments in the Bentjees (case C-31/87, Gebroeders
Beentjes B.V. v. State of Netherlands, [1988] ECR 4635), Nord-Pas-de-Calais, (case C-
225/98, Commission v. French Republic, [2000] ECR 7445), and the Concordia, case
C-513/99, Concordia Bus Finlandia v. Helsingin Kaupunki et HKL-Bussiliikenne,
[2002] ECR 7213.
observing the publicity and mandatory advertisement requirements, ii) proce-

dures concerning standardization and technical specifications50 and iii) proce-
dures relating to the notion of abnormally low offers.51
The vehicle of harmonization has been entrusted to carry the progress of
public procurement regulation. Directives, as legal instruments, have been
utilized to provide the framework of the acquis communautaire, but at the
same time afford the necessary discretion to the Member States as to the forms
and methods of their implementation. This is where the first deviation of anti-
trust from the traditional economic approach of public procurement occurs.
Anti-trust law and policy is enacted through the principle of uniformity across
the common market, utilizing directly applicable regulations. By allowing for
discretion to the Member States, an element of public policy is inserted in the
equation, which often has decentralized features. Traditionally, discretion
afforded by Directives takes into account national particularities and sensitiv-
ities as well as the readiness of domestic administrations to implement acquis
within a certain deadline. In addition, individuals, who are also subjects of the
rights and duties envisaged by the Directives, do not have access to justices,
unless provisions of Directives produce direct effect.
However, the public policy dimension of public procurement regulation is
not exhausted in the nature of the legal instruments of the regime. The genuine
connection of an ordo-liberal perspective52 with public procurement regula-
tion is reflected in the award criterion relating to the most economically
advantageous offer. The public sector can award contracts by reference to
‘qualitative’ criteria, in conjunction with price, and thus can legitimately devi-
ate from the strict price competition environment set by the lowest offer crite-
rion.53 There are three themes emanating from such approach: one reflects on
public procurement as a complementary tool of the European Integration
50 See case C-45/87, Commission v. Ireland, [1988] ECR 4929; also case C-
359/93, Commission v. the Netherlands, [1995] ECR 151.
51 See case C-76/81, SA Transporoute et Travaux v. Minister of Public Works,
[1982] ECR 457; case C-103/88, Fratelli Costanzo S.p.A. v. Comune di Milano, [1989]
ECR 1839; case C-296/89, Impresa Dona Alfonso di Dona Alfonso & Figli s.n.c. v.
Consorzio per lo Sviluppo Industriale del Comune di Monfalcone, [1991] ECR 2967;
case C-285/99 & 286/99, Impresa Lombardini SpA v ANAS, [2001] ECR 9233.
52 See Jacquemin and de Jong, European Industrial Organization, Macmillan,
1997; Möschel, ‘Competition Law from an Ordo Point of View’, in Peacock and
Willgerodt, German Neo-Liberals and the Social Market Economy, Macmillan, 1989.
53 See Commission Interpretative Communication on the Community law
applicable to public procurement and the possibilities for integrating social considera-
tions into public procurement, COM (2001) 566, 15 October 2001. Also, Commission
Interpretative Communication on the Community law applicable to public procurement
and the possibilities for integrating environmental considerations into public procure-
ment, COM(2001) 274, 4 July 2001.
process; the second regards public procurement as an instrument of contract

compliance; last, the ordo-liberal perspective can reveal a rule of reason in
public procurement, where the integration of public markets in the European
Union serves as a conveyor belt of common policies, such as environmental
policy, consumer policy, social policy, industrial policy and takes into account
a flexible and wider view of national and community priorities, and a type of
‘European public policy’.
Policy makers at both European and national levels have not overlooked the
effects of public procurement on the formulation of the industrial policy of the
European Union. The objective of the public procurement regulation has to a
large extent acquired an industrial policy background, which mainly focuses
on the achievement of savings for the public sector and the much-desired
restructuring and adjustment of the European industrial base. However, public
spending in the form of procurement is indissolubly linked with adjacent poli-
cies and agendas in all Member States. The most important policy associated
with public purchasing is social policy. Such an argument finds justification in
two reasons: the first relates to the optimal utilization of human resources in
industries supplying the public sector; the second reason acquires a strategic
dimension, in the sense that public purchasing serves aims and objectives stip-
ulated in the European Treaties, such as social cohesion, combating of long-
term unemployment, and finally the achievement of acceptable standards of
living. The underlying objectives of the European regime on public procure-
ment relating to enhanced competition and unobstructed market access in the
public sector at first sight appear incompatible with the social dimension of
European integration, particularly in an era where recession and economic
stagnation have revealed the combating of unemployment as a main theme of
European governance.
The award of public contracts can be based on two criteria: i) the lowest
price or ii) the most economically advantageous offer. Contracting authorities
have absolute discretion in adopting the award criterion under which they wish
to award their public contracts. The lowest price award criterion is mostly used
when the procurement process is relatively straightforward. On the other hand,
the most economically advantageous offer award criterion is suited for more
complex procurement schemes.
The most economically advantageous offer as an award criterion represents
a flexible framework for contacting authorities wishing to insert a qualitative
parameter in the award process of a public contract. It is imperative to recog-
nize that price, as a quantitative parameter plays an important role in the eval-
uation stage of tenders, as the meaning of ‘economically advantageous’ could
well embrace financial considerations in the long-run. So, if the qualitative
criteria of a particular bid compensate for its more expensive price, potential
savings in the long-run could not be precluded. It is not clear whether the
choice of the two above-mentioned award criteria has been intentional with a
view to providing contracting authorities a margin of discretion to take into
account social policy objectives when awarding their public contracts, or if it
merely reflects an element of flexibility which is considered necessary in
modern purchasing transactions. If the most economically advantageous offer
represents elements relating to quality of public purchasing other than price,
an argument arises here supporting the fact that the enhancement of the socio-
economic fabric is a ‘qualitative’ element which can fall into the framework of
the above criterion. This argument would take away the assumption that the
award of public contracts is a pure economic exercise. On the other hand, if
one is to insist that public procurement should reflect only economic choices,
the social policy considerations that may arise from the award of public
contracts would certainly have an economic dimension attached to them, often
in public service activities which are parallel to public procurement. To what
extent contracting authorities should contemplate such elements remains
unclear.
The regulation of public procurement and the integration of the public
markets of the Member States do not operate in a vacuum. Irrespective of the
often-publicized nature of public procurement as the most significant non-
tariff barrier for the functioning of the common market and the clinical presen-
tation of the arguments in favour of an integrated public market across the
European Union,54 public purchasing is indissolubly linked with national poli-
cies and priorities.55 In the history of European economic integration, public
procurement has been an important part of the Member States’ industrial poli-
cies. It has been utilized as a policy tool56 in order to support indigenous
suppliers and contractors and protect national industries and the related work-
force.
54 See European Commission, Special Sectoral Report no 1, Public

Procurement, Brussels, November 1997.
55 See European Commission, Public Procurement: Regional and Social
Aspects (COM(89) 400.
56 The legislation on public procurement in the early days clearly allowed for
‘preference schemes’ in less favoured regions of the common market which were expe-
riencing industrial decline. See Articles 29(4) and 29(a) of the EC Public Works
Directive 71/305; also Article 26 of EC Public Supplies Directive 77/62. Such schemes
required the application of award criteria based on considerations other than the lowest
price or the most economically advantageous offer, subject to their compatibility with
Community Law in as much as they did not run contrary to the principle of free move-
ment of goods and to competition law considerations with respect to state aid. Since the
completion of the Internal market (1992) they have been abolished, as they have been
deemed capable in contravening directly or indirectly the basic principle of non-
discrimination on grounds of nationality stipulated in the Treaty of Rome.
The public procurement legal framework can also accommodate contract

compliance through its award criteria and in particular the most economically
advantageous offer. The most economically advantageous offer as an award
criterion has provided the Court with the opportunity to balance the economic
considerations of public procurement with policy choices. Although in numer-
ous instances the Court has maintained the importance of the economic
approach57 to the regulation of public sector contracts, it has also recognized
the relative discretion of contracting authorities to utilize non-economic
considerations as part of the award criteria.
The term contract compliance58 could be best defined as the range of
secondary policies relevant to public procurement, which aim at combating
discrimination on grounds of sex, race, religion or disability.59 When utilized
in public contracts, contract compliance is a system whereby, unless the
supply side (the industry) complies with certain conditions relating to social
policy measures, contracting authorities can lawfully exclude tenderers from
selection, qualification and award procedures. The potential of public purchas-
ing as a tool capable of promoting social policies has been met with consider-
able scepticism. Policies relevant to affirmative action or positive
discrimination have caused a great deal of controversy, as they practically
accomplish very little in rectifying labour market equilibria. In addition to the
practicality and effectiveness of such policies, serious reservations have been
expressed with regard to their constitutionality,60 since they could limit, actu-
ally and potentially, the principles of economic freedom and freedom of trans-
actions.61
57 See case C-380/98, The Queen and H.M. Treasury, ex parte University of
Cambridge, judgment of 3 October 2000 at paragraph 17; case C-44/96, C-44/96,
Mannesmann Anlangenbau Austria AG et al. v. Strohal Rotationsdurck GesmbH, judg-
ment of 15 January 1998, paragraph 33; case C-360/96, Gemeente Arnhem Gemeente
Rheden v. BFI Holding BV, judgment of 10 November 1998 at paragraphs 42 and 43;
case C-237/99, Commission v. France, judgment of 1 February 2001, at paragraphs 41
and 42.
58 See Bovis, ‘The Compatibility of Compulsory Tendering with Transfer of
Undertakings: the case of Contract Compliance and the Acquired Rights Directive’,
Chapter 21, Legal Regulation of the Employment Relations, Collins, Davies and
Rideout (eds), Kluwer, 2000.
59 See ILEA Contract Compliance Equal Opportunities Unit, Contract
Compliance: a brief history, London, 1990.
60 In particular in the US, see case 93-1841, Adarand Constructors v. Pena,
1995 Annual Volume of US Supreme Court. The United States Supreme Court ques-
tioned the constitutionality in the application of contract compliance as a potential
violation of the equal protection component of the Fifth Amendment’s Due Process
Clause and ordered the Court of Appeal to re-consider the employment of socio-
economic policy objectives in the award of federal public procurement contracts.
61 For an overview of the Social Policy in North American systems, see Cnossen
Contract compliance legislation and policy is familiar to most European

member states, although the enactment of public procurement Directives has
changed the situation dramatically.62 The position of European Institutions on
contract compliance has been addressed in three instances before the European
Court of Justice.63 The Court maintained that contract compliance with refer-
ence to domestic or local employment cannot be used as a selection criterion
in tendering procedures for the award of public contracts. The selection of
tenderers is a process which is based on an exhaustive list of technical and
financial requirements expressly stipulated in the relevant Directives and the
insertion of contract compliance as a selection and qualification requirement
would be considered ultra vires. The Court ruled that social policy considera-
tions can only be part of award criteria in public procurement, and especially
in cases where the most economically advantageous offer is selected, provided
that they do not run contrary to the basic principles of the Treaty and that they
have been mentioned in the tender notice.
The Court’s approach has also opened an interesting debate on the integral
dimensions of contract compliance and the differentiation between the positive
and negative approaches. The concept of positive approach within contract
compliance encompasses all measures and policies imposed by contracting
authorities on tenderers as suitability criteria for their selection in public
procurement contracts. Such positive action measures and policies intend to
complement the actual objectives of public procurement which are confined in
economic and financial parameters and are based on a transparent and
predictable legal background. Although the complementarity of contract
compliance with the actual aims and objectives of the public procurement
regime was acknowledged, the Court (and the European Commission) were
reluctant in accepting such an over-flexible interpretation of the Directives and
based on the literal interpretation of the relevant provisions disallowed posi-
tive actions of a social policy dimension as part of the selection criteria for
tendering procedures in public procurement.
However, contract compliance can incorporate not only unemployment
considerations, but also promote equality of opportunities and eliminate sex or
and Bovis, ‘The framework of social policy in federal states: An analysis of the law and
policy on industrial relations in USA and Canada’, (1996) 12, International Journal of
Comparative Labour Law and Industrial Relations.
62 For example, in the United Kingdom, every initiative relating to contract
compliance has been outlawed by virtue of the Local Government Act 1988. Contract
compliance from a public law perspective has been examined by Daintith, in
‘Regulation by Contract: the new prerogative’, (1979) 32 C.L.P, 41.
63 See case C-31/87, Gebroeders Beentjes BV v. the Netherlands, [1989] ECR
4365. Also see case C-360/89, Commission v. Italy, judgment of 3 July 1992.
Another random document with
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"They said I was a thief—they said I had taken
something of Lady Millicent's. They were coming to search
my box, and I ran away."
"But why did you, Prin?" asked Bert, looking perplexed

and troubled. "You should have stayed and let them search
your box, then they would have known that you had not
stolen it. But now they will most likely think that you've got
whatever it was, and taken it away with you. It wasn't like
you, Prin, to be so foolish."
"I suppose I did not think of that," she said, looking

down.
"You didn't walk from Hampshire, surely?" he said, as

his eyes fell on her boots.
She nodded.
"Most of the way," she said. "I didn't dare to take a train
on their line, for fear they should telegraph and have me
stopped at the station. I lay under a hedge last night, and
as soon as it was light, I got up and walked on. Then a
carrier's cart overtook me, and I got a lift. It was going to
Weybridge, and there I took the train for London."
"You must be dreadfully tired," said Bert, looking

compassionately at her; "you'd better get to bed at once."
"Oh," she cried, with a sudden wail of distress, "I wish I

had not done it!" Then looking round her fearfully, she
added, "You don't think they'll find me here, do you, Bert?
Perhaps we had better go somewhere else."
"Why should you be afraid of their finding you, if you

haven't got it?" asked Bert. "Of course you wouldn't be
likely to steal. 'We're poor, but we're honest!' as father used
to say. What was it they thought you had taken?"
"Oh, do be quiet! You'll drive me mad with your

questions!" cried Prin angrily. "I am not going to say
another word, so there."
She began to undress. When she took off her stockings,

it appeared that her feet were sore and blistered, and Bert
fetched some water and bathed them for her. Then she lay
down, and almost immediately fell into an uneasy sleep.
Bert sat and watched her, his mind full of perplexity and
trouble. Presently Prin began to move from side to side in
her sleep, and to talk rapidly.
"They're coming! They're coming!" she would cry. "Don't

let them find me, Bert! Can't you hide me somewhere? Tell
them I haven't got it. Oh, how it sparkles! Can they see it in
the dark? It's Lady Millicent's; but if she's going to die, she
won't want it; she doesn't care for it, anyhow. Oh, Bert,
Bert, help me—don't leave me! I'm so frightened."
"I'm here, Prin. You need not be afraid. I won't leave

you," Bert made reply.
His high, clear tones seemed to reach her troubled brain

even in her sleep, with power to calm. She grew quieter.
Bert meant to watch beside her all night, but weariness
overpowered him. He stretched himself at the foot of the
bed, intending to rest but a few minutes, and fell into the
sound slumber of a boy accustomed to sleep under the
most unfavourable circumstances.
When he woke it was daylight, and the area-room,

gloomy at the best of times, was as bright as it ever could
be. Prin was awake, but complained of feeling very ill. She
had terrible pain in her head and limbs. Bert ran out and
bought some tea—a luxury he rarely indulged in himself—
and made her a cup. She drank it eagerly, but it did not
prove the panacea he had hoped. He would fain have
brought Mrs. Brown to see her, but Prin passionately bid
him bar the door against every one. She would soon be all
right, if only she were left alone, she said. But though Bert
let her lie all day undisturbed, only giving her something to
drink when she asked him, she did not get better. At night
she was in a high fever, and by the next morning she was
delirious.
Then Bert had to seek the help of Mrs. Brown. She

came and looked at Prin from the doorway, but would not
venture nearer, being convinced that her malady must be
something "catching."
She sent for the parish doctor, but he did not come till
the afternoon, and meanwhile Bert suffered an agony of
suspense. Again the terrible question, "What if Prin should
die?" pierced his heart.
At last the doctor's step was heard hurriedly descending

to the area.
"What, is it you?" said Mr. Hurst, as he recognised the

boy. "And is the Princess ill again? Why, I thought she had
gone away?"
"So she did," said Bert; "but she came back the day
before yesterday."
"Ah! Came back ill?"
Bert nodded.
"Did they send her back because she was ill?"

"Oh no; it wasn't that," said Bert; "she ran away
because they were unkind to her."
"Ran away! Unkind to her!" repeated the doctor, in

amazement.
"Yes; they said she had stolen something. Prin could not
stand that. She always was a spirit. So she ran away."
"Phew!" said the doctor expressively. "A very foolish

spirit."
Then he gave his attention to his patient. He went

thoroughly into her case, and seemed anxious to do his best
for her. There was no infection, he said. It was a fever
produced by exposure, over-fatigue, and distress of mind.
Perhaps influenza had something to do with it; but,
whatever it was, she could not be moved now, but must be
nursed where she lay.
"Who will nurse her?" asked the doctor. "Where's that

old woman who used to take care of you?"
"Mrs. Kay?" said Bert. "She's gone to Scotland; but I

can nurse Prin."
"You!" Mr. Hurst shrugged his shoulders expressively.

"It's a poor look-out, if she has only you to nurse her. I'll
see if I can get the district nurse to come; but her hands
are pretty full just now. Why didn't she stay where she was
well off?"
He looked at Prin. She was beginning to talk excitedly

again.
"Bert, Bert," she cried; "don't let them have it! It's
mine, I tell you. See how it sparkles! They're diamonds, real
diamonds, worth ever so much money. I only wish—"
Her voice fell and died away in confused murmurings.
"So," said the doctor, "her mind runs upon diamonds!

Curious what a fascination they have for her sex! Many a
woman is ready to sell her soul for them; but I should have
thought this child was too young to have felt the
temptation. But who knows! Perhaps the devil has thus
baited his trap for her too."
He was speaking to himself rather than to Bert, who

looked at him in wonder and made no reply, though the
words inspired him with a vague uneasiness.
Mr. Hurst then gave Bert various plain and simple

directions as to what he should do for his sister.
"Will she get better, sir?" Bert asked.
The doctor did not seem to hear the question.
"Now mind what I have told you," he said as he

departed. "I'll send the medicine directly, and you must give
it to her at once."
"All right," said Bert. But, left alone with his

unconscious sister in that dismal room, he felt as if nothing
were right.
Bert proved a better nurse than the doctor could have

believed. Love helped him to find out the best way of
waiting on the patient, and inducing her to swallow the milk
which the doctor had ordered her to have from time to
time. The thin, worn mattress had slipped out of place
under Prin's restless movements. Bert was exerting all his
strength to drag it back into its right position, when
suddenly a strange light flashed from beneath the corner he
had raised. What could it be that gleamed so in that dark
room? Bert turned up the mattress, and beheld, pinned to
its inner side, a brilliant sparkling thing, which on
examination proved to be a tiny brooch in the shape of a
star. With trembling fingers Bert unfastened it and laid it on
his palm, where, as the light fell on it, the costly ornament
emitted flashes of dazzling, rainbow-hued brilliance.
Bert knew instinctively that the radiant gems which

composed the brooch were diamonds of the utmost value.
The sight inspired him with terror. His face grew white to
the very lips as he looked at it, and the hand which held the
diamond star trembled. For to him that beautiful object had
the ugly face of a sin. He knew now what it was that Lady
Millicent had missed, and he knew that Prin had stolen it;
for assuredly no such radiant star had glittered on the dingy
mattress when he made the bed for his sister on the night
of her return. The discovery fell like a cruel blow on the
loving heart in which the Princess was enthroned.
CHAPTER XII
At the Last Extremity
THE diamond brooch seemed to burn Bert's fingers as

he held it, and he was glad to thrust it out of sight again
beneath the mattress. It was plain now why Prin in her
mental wanderings continually spoke of diamonds and
glittering things. Poor Prin! Her mind had been sorely
troubled in consequence of what she had done. Sin had
brought its penalty. Bert's first feeling of shame and
indignation changed to pity as he watched her. She was
very ill. Even Bert, in his inexperience, could perceive that
her sickness was "nigh unto death."
The district nurse came in and looked after the patient,

giving to her all the time she could spare from her other
cases, which unfortunately were very numerous; for there
was much sickness at this time in the close, stifling streets
of this poor neighbourhood. The doctor watched the case
carefully, but would answer no questions. Bert wondered
sadly what the end would be. He could not bear to think of
Prin lying cold and still, as he had seen his father lie.
Yet if she lived, would not the police be sure to find her
and the stolen brooch, and take her off to prison? Bert had
great faith in the omnipotence of the police. The thought of
the Princess in prison was terrible. Yet scarcely less
grievous was the thought of her guilt. God knew what she
had done. God's eye could see the glittering thing hidden
beneath the mattress. And God would punish sin. Was it too
late to pray, "Deliver her from evil"?
The third day of Prin's illness was drawing to its close.

Bert had drawn down the blind and lighted the solitary
candle which illumined the room. The Princess had been
very ill all day. The nurse had seen her in the morning, and
had promised, if possible, to come in later; but she had not
come. Bert was feeling intensely anxious about his sister,
who had ceased to talk, and now lay in a heavy slumber.
In vain he had tried to induce her to swallow the milk

and brandy which the nurse had told him to give her every
hour. He had found it impossible to administer it, and he
longed for the nurse to come to his help. The outside world
was noisy as usual. Never had there been a greater turmoil
in the street; but Prin was unconscious of it all. It seemed
as if nothing would rouse her. As he sat beside her, Bert
himself grew drowsy from protracted watching. His head
began to nod as he sat there. How long he thus lost himself
he could not have told, when suddenly he sprang up, roused
to quick consciousness by Prin's voice. To his surprise, he
saw her sitting up in bed and looking about her with a
bewildered air.
"Bert," she said, "are you there? Where am I? Have I

been ill? What place is this?"
"Why, it's our little room, Prin, where we used to live,

don't you know? And you have been ill, very ill; but I'm so
glad you're better."
"Where is Lady Millicent?" Prin asked. "Wasn't she here

just now?"
"Oh no, Prin. No one's been here except me and the

nurse and the doctor."
"But she was here," persisted Prin, "you must have

been asleep. She came and stood beside me, and put her
soft little hand on my forehead, and said how sorry she
was. She said she forgave me, but she was so sorry;
because she was going to heaven, and she wanted me to go
there too, but I couldn't if I did such things. Oh, Bert, where
is she now?"
"She has not been here, Prin. You are mistaken. It is all
a dream."
"It can't be a dream," persisted Prin, "I saw her as plain

as possible, and I can feel her touch on my forehead now.
Is it—is it all a dream that I took the brooch?"
"No, Prin, that's not a dream," said Bert sadly. "It's here
under the bed."
Prin uttered a wail of distress and sank back on the

pillow. All strength seemed to go from her.
She began to speak; but so faintly that Bert could

hardly hear what she said.
"Oh," she murmured, "I can't think what made me do it.

And she loved me so. You must take it back to her, Bert;
you must tell her how sorry I am. Oh, I feel so ill. Am I
going to die?"
"Oh no, not now, Prin," cried Bert; "you are better, I am
sure. And the doctor will be here directly. He said he would
look in again to-night."
"If he does not come soon, I shall die," she said faintly.
"Oh, Bert, I don't want to die—I am so afraid!"
She would have said more, but utterance failed her. Her
voice died away. She drew one deep breath, and then there
was a stillness which appalled Bert. He bent over her in
terror. He tried to force milk down her throat, but it ran out
of her mouth as fast as he put it in. He laid his hand on her
forehead, and it felt cold and clammy. He called to her
loudly, but her ears were deaf to his cry.
Then his heart sank very low, and hope died within him.
He caught up the candle, and held it so that its light fell full
on Prin's face. The features were set, the eyes half-closed,
the mouth a little open, and the countenance was ghastly in
its pallor. Just so had he seen his father look when he was
dead. So, it was all over. Prin too was dead! With a cry of
despair, Bert cast himself face downwards on the bed.
He was roused by a resounding knock on the door. He
started up in a dazed condition and went to open it. Two
men stood at the foot of the steps. They were not attired as
police officers, yet instinctively Bert divined their errand.
"There is a girl living here named Sinclair?" said one.
Bert made no reply.
"She's your sister, isn't she?" said the other.
Bert nodded.
The look of the boy's pale, woe-begone face touched

the man's heart, and he said kindly, "I am afraid we've
come to bring you trouble, my little man. We have to arrest
your sister on the charge of stealing a diamond brooch from
the house of Lord Ravenscourt, near Petersfield."
"It's true, she took it," said Bert sadly. "I have it here,
and I'll give it to you. But you can't take Prin, for she's
gone."
"Gone!" repeated the foremost man sharply. "Where?

When?" And he pushed forward into the room.
"She's dead," said Bert.
"Dead!" the two men exclaimed together, in startled

tones. They were dismayed and awed. They stood by the
door and looked uneasily towards the bed on which the still
form lay.
"When did she die?" asked one.
"A few minutes ago," said Bert.

Then the other man walked to the bed and looked
closely at Prin, and laid his hand on her forehead.
"It's so," he said; "she's dead."
Bert burst out sobbing; but, struggling with his sobs, he

searched beneath the mattress and brought out the
diamond star, which he gave to the officers.
"That's it," he said, "and please, when you give it to

Lady Millicent, will you say that Prin was very sorry at the
last?"
"All right, I'll see about it," said the man, conscious of a
queer lump in his throat as he spoke. "And now, what are
you going to do? You must get some woman to come and
help you."
"The nurse will be here directly," said Bert, "and the

doctor too is coming."
"Oh, then, they'll see about things," said the man,

relieved. He was oppressed by the atmosphere of that
gloomy room and the awful presence of death, and was
anxious to get away, though it seemed hard to leave the
boy alone with his dead.
"Come, Joe," he said to his subordinate, "we can do no

good here."
So they went out. At the head of the area steps, they

encountered the doctor, and paused to have a few words
with him. But they did not descend again to the room. Even
a police officer may have a heart too soft for his profession,
and familiarity with painful scenes may fail to render it
callous.
CHAPTER XIII
Dead and Alive Again
BERT was crouching on the bed close to his sister when

the doctor came into the room. Dead or alive, Prin was Prin,
and Bert felt no awe of her. He was bending over her, and
his tears were dropping on her forehead. The doctor took
hold of him forcibly and lifted him from the bed.
"Come, this won't do," he said. "You must not give way.
Just let me have a look at her. It's all over, they tell me."
Bert made no reply, having no voice at his command.

Dr. Hurst touched Prin's still form, straightened it, and laid
his hand on her heart. Then he uttered a startled cry.
"She lives yet! I can feel her heart beat. Quick, boy,
give me the brandy, quick!"
There was but a small quantity at hand. The doctor

succeeded in pouring it all down his patient's throat; then
he called to Bert for water. The boy flew to fetch it, and to
his joy met the nurse at the door. She had come in time,
not to lay out the dead, but to help to revive the living.
Doctor and nurse worked together in breathless

excitement for some minutes. Their efforts were rewarded.
Hope grew as they worked, till, after about a quarter of an
hour, the girl drew a deep, natural breath, and opened her
eyes.
"She will live," whispered the doctor; and Bert caught

the words, and ran out of the room, that he might sob
freely.
The nurse sat up with the patient that night, for her
weakness was extreme, and she might yet slip away if she
were not assiduously cared for. But the hours of the night
brought no relapse, and the morning found Prin better.
"She'll do now," said Dr. Hurst, rubbing his hands with

satisfaction. "It's the narrowest escape I ever saw. If I had
come in a minute later, it might have been too late.
"Don't you be in such a hurry to jump to conclusions

another time, young man," he added, as he turned to Bert;
"but there! We'll hope there'll be no more times such as
this."
Bert devoutly hoped so too. Yet thankful as he was that

Prin was restored to life, there was a burden on the boy's
mind as he thought of the future.
"Will the police want her now, sir?" he asked anxiously

of the doctor.
"Ah, the police!" said Dr. Hurst, looking grave. "That is a

bad business. So, she was only a sham princess after all!"
"Of course she was never a real one," said Bert.
"Ah! But she might have been!" said the doctor. "'Tis
only noble to be good. Every good, true woman is of royal
lineage, no matter who her parents were."
"And Prin was not good and true," said Bert sadly; "I
will never call her Princess again."
"Don't say that," said Dr. Hurst; "she may be worthy of

the title yet. She has life before her, and may live to be
thankful for the fall which taught her the misery of wrong-
doing. Do you know, lad, there is a ladder by which men
and women may climb upwards, and the rungs of that
ladder are formed of the mistakes and sins of the past? It is
painful climbing for most of us; but she is young, and it will
be easier for her."
"Oh, I hope so," said Bert, only half-grasping the

meaning of the doctor's words.
Just then there was a rap on the door. Bert ran to open
it. A gentleman stood in the narrow space at the foot of the
steps. His bearing was such that he looked strangely out of
place in that dingy spot, and catching sight of him, the
doctor hastened forward.
"Is there not a girl lying dead here whose name was
Sinclair?" he asked, with some hesitation of manner.
"Not dead, sir!" cried Bert excitedly. "She's come to life

again."
"Indeed!" said the gentleman, in amazement. "A police

officer called at my house last night and told me she was
dead."
Then the doctor stepping out and closing the door

behind him, lest their words should reach the ears of his
patient, began to explain Bert's extraordinary statement.
The gentleman listened in astonishment. "I should have

thought the policeman might have known," he said.
"So should I," said the doctor; "but—" He shrugged his
shoulders expressively.
"Well, I am glad the poor girl still lives," said the

gentleman. "Can I see her?"
The doctor shook his head. "I dare not risk the effect of
excitement," he said.
"No doubt you are right," said the gentleman. "I must
wait till another time. I am Lord Ravenscourt. The
policeman brought me last night the diamond brooch found
here, which the girl stole from my daughter."
He spoke quietly and sadly.
"Oh, sir!" broke in Bert, who stood between them, his

tones quivering with emotion. "Please don't send Prin to
prison! She's so sorry now that she took the brooch. She
told me last night, before she died, as I thought, how sorry
she was, and begged me to take the brooch back to Lady
Millicent and ask her to forgive her. Oh, sir, will you ask
Lady Millicent to forgive Prin? And if some one must go to
prison, please let it be me!"
For a moment Lord Ravenscourt did not reply. Tears

seemed to be glistening in his eyes when he said very
gently,—
"Do not be afraid, my boy. Neither you nor your sister

shall go to prison. But it is not in my power to give your
message to Lady Millicent. She is in heaven. She passed
away last evening."
"Last evening! And it was at that time that Prin had

believed that she had a visit from Lady Millicent!" Bert
marvelled; but he could not speak of that which was in his
mind.
There was a silence which appeared long to all three,

though it lasted only a few moments. Then Lord
Ravenscourt said, speaking with an effort: "You may assure
your sister of Lady Millicent's forgiveness. She loved her to
the last, although she made such a base return for her love.
It was the discovery of that which hastened my daughter's
end. But we will not speak of it. Lady Millicent asked me to
tell your sister that she forgave her and hoped to meet her
in heaven. A week ago my daughter made her little will.
She wanted to leave your sister the diamond brooch,
because she knew how much she admired it; but I
persuaded her that it would not be a suitable bequest, and
a sum of money was substituted, to be spent on the girl's
education."
Lord Ravenscourt paused abruptly. He became aware

that he was speaking to a larger audience than he had
imagined. Children were swarming on the pavement and
hanging over the railings of the area. Women stood in the
doorway above his head; others leaned out of the windows
of the house. From every possible point of view, persons of
more or less doubtful respectability were watching the
strange gentleman, and straining their ears to hear what he
was saying.
"I must go," said Lord Ravenscourt to the doctor. "You

will let me know as soon as it is safe to move your patient.
We must take her down to the country again. And the boy
too. We must see what we can do for him."
Then he hurried up the steps, the crowd scattering to

right and left at his approach, sprang into his hansom, and
drove away.
"You may consider your fortune made, young man,"
said the doctor gleefully, as he and Bert went back into the
room. Lord Ravenscourt's coming was to prove a good thing
for him also, but that he could not foresee.
His foresight concerning the children proved true. Lord

Ravenscourt was a good friend to them for his daughter's
sake. Bert never knew again what it was to be lonely and
ragged and hungry.
Prin's repentance was genuine. As she regained health

and strength, her life was lived on a higher level. Her feet
were on the ladder the top of which reaches to heaven, and
she was seeking to follow in the steps of Lady Millicent, who
had followed Christ.
Bert from time to time had good news of his old friend,
Mr. Corney, or, as he now signed his letters, "Cornelius
Theophilus Grant." His hopes for his sister were fulfilled,
and she too was climbing the ladder and trampling under
foot the sins of the past, strengthened by the Mighty Friend,
whose hand she grasped as she toiled upward.
Bert could never forget the experiences of his

childhood, nor lose his vivid consciousness of the evil that
ruins human lives. His strongest desire as he grew up was
to fight that evil—the evil within as well as that without—
trusting for the victory to Him, whose is the "kingdom, and
the power, and the glory, for ever."
THE END.
Butler & Tanner, The Selwood Printing Works, Frome,
and London.
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Get EU Public Procurement Law 2nd Edition Edition Christopher Bovis Free All Chapters

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ELGAR EUROPEAN LAW

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tisement and publicity of public contracts, the process of qualitative selec-

interest, needs in general interest and contracts financing public services.

procurement of partnerships must adhere to the enshrined principles of

It is with deep appreciation that I express my gratitude to a number of people

Professor Christopher H. Bovis

(CEI) v. Association C-247/89, Commission v. Portugal,

C-71/92, Commission v. Spain, judg- Telecommunications PLC, OJ

C-44/96, Mannesmann Anlangenbau C-256/97, DM Transport, [1999]

den Donauraum AG (WED), ECR C-212/02, Commission of the

[2005] ECR I-08831 366, 369, C-220/06, Asociación Profesional de

C-149/08, Aktor Anonymi Techniki Immobilienaufgaben, [2010] 3

Public procurement is a powerful exercise. It carries the aptitude of acquisi-

accounts for over €2 trillion. Public procurement in the Member States is a

1 An approximate 20% of total public expenditure on goods, works and services

European Commission’s Green Paper on Public Procurement4 and the follow-

11 Large amounts of public expenditure on goods and services to provide health,

Member States. The identification of public procurement as a significant non-

13 See Commission of the European Communities, The Cost of Non-Europe,

susceptible to a rationale and a policy that tend to favour indigenous under-

the selection procedures (quantitative and qualitative suitability criteria). The

public procurement rules inapplicable. Finally, the Court accepted, in princi-

capable of discriminating against potential contractors and uniform applica-

PUBLIC PROCUREMENT AND THE CONCEPT OF

1 See Valadou, La notion de pouvoir adjudicateur en matière de marchés de

4 See Bovis, The Liberalisation of Public Procurement in the European Union

stone7 of the competence of Member States to provide, organize and deliver

or having the character of a revenue-producing monopoly shall be subject to the rules

12 In the context of air transport, public service obligation is defined in Council

The concept of SGEI appears in Articles 14 and 106(2) TFEU and in

16 See cases C-179/90, Merci convenzionali porto di Genova, [1991] ECR I-

people with long-term health or disability problems. Fourthly, they also

21 See case C-206/98, Commission v. Belgium, [2000] ECR I-3509, paragraph

26 See case C-223/99, C-223/99, Agora Srl v. Ente Autonomo Fiera

30 See the Commission’s XXIII Competition Report, point 534.

conferred to operators by reference to a specific procedure, which links their