The Purpose of the EU Procurement Directives: Ends, Means and the Implications for National Regulatory Space for Commercial and Horizontal Procurement Policies

Abstract

There currently appears to be considerable confusion amongst regulators and stakeholders over the purpose of the EU’s directives on public procurement and lack of a clear vision of what the directives seek to achieve. Against this background this article has two objectives. First, it seeks to provide a framework for understanding the directives’ functions and their relationship with national policy. In this respect it identifies the ends and means that the directives do, or could, adopt and/or which have been ascribed to them, and considers the implications of each for national regulatory space. Secondly, for each of the ends and means it suggests a specific legal interpretation of its actual and potential role in the EU’s legal framework.It is argued that the directives seek to promote the internal market and that they seek to do so solely by three means—prohibiting discrimination, implementing transparency, and removing barriers to access. It rejects, on the other hand, certain broader conceptions of the directives, including that they promote a single market by standardising procedures; that they replicate in the public market the competitive process of the private market; and that they seek value for taxpayers’ money. It is argued that rejection of these broader functions has important implications for the scope of national regulatory space, both as regards the ‘commercial’ aspects of public procurement—notably ensuring value for money and an efficient procurement process—and as regards ‘horizontal’ policies in the sense of policies that promote social and environmental objectives through public procurement.

An Analytical Network Process model for risks prioritisation in megaprojects

“…Cases: the Constanta Water Project (Arrowsmith, 2011), Prescom in Targoviste project (Arrowsmith, 2011) Government discontinuity Hertogh and Westerveld (2011), Flyvbjerg et al (2003a, 2003b Lack of political support Curtis and Sturup (2012), Frick (2008), Flyvbjerg et al (2003aFlyvbjerg et al ( , 2003b Cases: Constanta Water project ((Arrowsmith, 2011)), Prescom project ((Arrowsmith, 2011)) Political indecision Dada and Jagboro (2007), Ruuska et al (2009), Haynes (2002 (continued on next page) 2015). In addition, the ANP has been widely used in solving many other complicated decision problems.…”

“…Inadequate project complexity analysis Arain et al (2004), Audit Scotland (2011) (2003) Environmental risks Adverse environmental impacts due to construction work Lo et al (2006). Case: Great Belt and Oresund Links project (Flyvbjerg et al, 2003a(Flyvbjerg et al, , 2003b Unfavourable climate conditions Cases: Great Belt and Oresund Links project (Flyvbjerg et al, 2003a(Flyvbjerg et al, , 2003b, London Underground project (Arrowsmith, 2011), Melbourne City Link project (Hodge, 2004), Thailand Underground Rail project (Ghosh and Jintanapakanont, 2004) Political risks Change in government funding policy Curtis and Sturup (2012), Frick (2008), Haynes (2002) Cases: Melbourne City Link project (Hodge, 2004), London Underground project (Arrowsmith, 2011).…”

Transforming Rehabilitation: What lessons might be learned from prison privatisation?

“…While it is fairly straightforward to sketch an outline of the key features of the procurement rules, their detail is complex and their scope and purpose(s) are highly contested (see especially Arrowsmith, 2012;Künzlik, 2013;Sánchez Graells, 2011). The procurement rules have become a site for wider ideological conflict about the purpose of the EU and the limits to its powers, but little is known about how commissioners understand and mobilise the rules in practice and what effects this might have upon the outputs and outcomes of competition processes.…”

Against the Grain? Member State Interests and EU Procurement Law

“…At first blush, this may seem to go fundamentally against the grain of EU public procurement law which, as the Court of Justice has repeatedly put it, aims 'to develop effective competition in the field of public works contracts', 2 in particular through the application of 'the principle of the equal treatment of tenderers and the corollary obligation of transparency'. 3 Indeed, even in its more minimalistic conceptualisation, the EU rules on public procurement are framed as an internal market tool primarily concerned with the demolition of domestic preferences and the suppression of discrimination based on nationality (Arrowsmith 2012). Following that view, it could be thought that there is a limited (and possibly narrowing) space for Member State interests in EU public procurement law.…”

“…Following that view, it could be thought that there is a limited (and possibly narrowing) space for Member State interests in EU public procurement law. Indeed, EU public procurement law has been considered to both impose a neoliberal conception of the role of the State in the economy that does not necessarily match the general preferences of Member States with a social market economy orientation (Kunzlik 2013), and severely constrain the regulatory space left to Member States, which can only be regained through a restrictive interpretation of EU procurement rules and their goals (Arrowsmith 2012). Thus, the preservation or promotion of space for national interests within the EU procurement architecture may seem anathema.…”