Public Procurement and the EU Competition Rules

Abstract: Part One Introduction 1 Introduction and Framework for Analysis I. Introduction II. General Approach to the Interrelationship between Competition and Public Procurement Law III. Aim of the Study IV. Structure of the Study and General Overview V. Methodology: An Eclectic and Heuristic Multi-Disciplinary and Functional Approach to EU Law VI. Normative Assumptions VII. Delimitation of the Study: Exclusions and Limitations Part Two Foundations and Principles: The Economic and Legal Basics of Public Procurement and Competition Law 2 An Economic Approach to Public Procurement and Competition I. Introduction II. Types of 'Public Procurement Markets' III. Economic Dimensions of Public Procurement IV. The Role of Public Authorities as Purchasing and Contracting Authorities V. Public Procurement as a Market Failure: Difficulties in Recreating a Competitive Scenario and Competition- Restricting Effects 60 VI. Conclusions to this Chapter 3 Basics of Competition and Public Procurement Regulation I. Introduction II. Principles Common to Competition and Public Procurement Law as Two Sets of Economic Regulation III. The Goal(s) of Competition Law IV. Goals of Public Procurement V. Conclusions to this Chapter: Common Goals of Competition Law and Public Procurement Conclusions to Part Two: Legal and Economic Normative Foundations of a More Competition-Oriented Public Procurement System Part Three General Part: The Building Blocks of a Framework for the Competition Analysis of Public Procurement 4 EU Competition Law and Public Procurement: The Inability of EU Competition Rules to Rein in Anti-Competitive Public Procurement I. Introduction II. The Inability of Rules on the Grant of State Aid and Special or Exclusive Rights to Tackle Anti-Competitive Public Procurement III. The Inapplicability of 'Core' EU Antitrust Rules to Public Procurement: A Jurisprudentially Created Gap in EU Competition Law IV. The Insufficiency of State Action Doctrine to Capture Most of the Anti-Competitive Public Procurement Regulations and Practices V. Preliminary Conclusions: The Insufficiency of Current Competition Institutions and Potential Improvements to Achieve Better Results VI. A Revision of Current Doctrine to Achieve Better Results (1): A More Economic Approach to the Concept of 'Economic Activity' in the Public Procurement Field VII. A Revision of Current Doctrine to Achieve Better Results (2): Setting the Proper Bounds to the State Action Doctrine VIII. Conclusions to this Chapter 5 The Principle of Competition Embedded in the EU Public Procurement Directives I. Introduction II. The Competition Principle Embedded in the pre-2014 EU Public Procurement Directives III. The Principle of Competition Consolidated in Article 18(1) of Directive 2014/24: A Critical Assessment of the Interpretative Difficulties it Creates IV. Implications of the Competition Principle for the Shaping of Public Procurement Rules by Member States: The General Obligation to Develop a Pro-Competitive Public Procurement Framework V. The Principle of Equal Treatment and the Principle of Competition Distinguished VI. Conclusions to this Chapter Part Four Analysis of Competition Distortions Caused by Public Procurement 6 A Critical Assessment of the 2014 EU Public Procurement Directives and the Existing Case Law from a Competition Perspective: Preventing Competitive Distortions by the Public Buyer I. Introduction II. A Competition Appraisal of Potential Distortions Derived from Public Procurement Processes III. Two Examples of Potential Distortions Derived from the Exercise of Public Entities' Market Power IV. Conclusions to this Chapter 7 Complementary Proposals for the Development of a More Competition-Oriented Public Procurement Framework I. Introduction II. Complementary Proposals Aimed at Limiting Publicly Created Restraints of Competition III. Complementary Proposals Aimed at Limiting Privately Created Restraints of Competition IV. Complementary Measures Aimed, in General, at Strengthening the Relationships between Competition and Procurement Authorities V. Conclusions to this Chapter Part V General Conclusions 8 Conclusions: Towards a More Competition-Oriented Procurement System References