| dc.description.abstract | The fundamental object of public procurement concerns the acquisition of a product, the delivery of a service or the completion of a work. Where a contracting authority seeks to incorporate criteria which are not necessary for that purpose but which serve a public interest objective, such as awarding higher marks for vehicles with lower carbon emissions, that may be termed a horizontal policy. Horizontal policies may also take the form of innovation or social goals, such as a requirement to employ a minimum percentage of unemployed persons on a construction project or the development of an innovative product or service. The principal questions of this thesis are whether the system of EU public procurement is satisfactory having regard to providing contracting authorities with the legal scope to use the process to promote horizontal goals and whether it may be improved.
The author argues from the premise that it is desirable to allow for the pursuit of horizontal objectives: the public procurement market offers a powerful economic incentive to tenderers (accounting for some 16-18% of EU GDP) to incorporate horizontal considerations into contract delivery. A horizontal sector-by-sector analysis is conducted which is then followed by an assessment of the impact of the EU State aid rules on the pursuit of horizontal policies using public procurement. It is argued that there are several problems with the Public Sector Directive is unsatisfactory. A central theme concerns the linkage pre-condition that the horizontal consideration must have a sufficient link to the contract subject matter in order to be valid.
First, it is agued that the linkage pre-condition fails to comply with the obligation in Article 11 TFEU, requiring that environmental considerations must be integrated into the definition and implementation of EU activities and policies: linkage as a pre-condition does not sufficiently enable the incorporation of such objectives. Second, that linkage applies to all horizontal policies in the same way is a failure to acknowledge the special status of the environment as accorded by Article 11 TFEU. Third, whilst the linkage requirement is not incompatible with the TFEU in the case of social considerations, it is nonetheless inapposite and misconceived: it is demonstrably artificial in the context of some social considerations, giving rise to legal uncertainty. Fourth, whilst linkage is not incompatible with the TFEU as regards innovation, it is inappropiate as innovation is ubiquitous in nature. Fifth, more generally, it is argued that the linkage pre-condition is misconceived and inapposite: it stems from a misguided syllogism in an EU judgment the application of which in the Public Sector Directive gives rise to artificiality and legal uncertainty: it is argued that the approach of the early case law should be used, together with the EU proportionality test. Sixth, the Pubic Sector Directive s new self-cleaning procedure, which allows tenderers who may otherwise be excluded from participation to self-clean, infringes the equality principle as there is a presumption of the bona fides of economic operator, and thus a guaranteed pathway to participation: that infringes equal treatment vis á vis economic operators who do not have to undergo such a procedure. Seventh, the obligation to ensure proportionality as between the value duration and degree of innovation in the innovation partnership procedure is overburdensome and is likely to disincentivise its use, especially as it, by definition, concerns a new innovative product or service: it is proposed that performance levels be allowed to be agreed after an initial R & D phase in order to enable compliance with the proportionality requirement. Eighth, there is an asymmetry between the broad scope for inclusion of horizontal objectives in the Public Sector Directive and the Commission s Market Economy Operator (MEO) test which is used to determine the presence of State aid in that the MEO test is based on micro-economic considerations: that test would require a direct economic link with the contract subject matter which is much narrower than the scope afforded by the Public Sector Directive. A new test, that of the CSR market economy purchaser , is proposed. | en |
