EU competition law and public procurementthe competition-driven limits imposed to public bodies when they source works, goods and services

Resumen

Traditionally, practices conducted by economic operators –either public or private– have been subjected to competition scrutiny. Nowadays, it cannot be denied that public actors are well positioned to impede, harm or reduce competition, not only when they intervene in the market as economic operators, but also when they act within the realm of their procuring activities. Procurement activities, albeit being of a clear economic nature, are not considered ‘economic’ in and by themselves. It has been extensively discussed the submission to competition constraints of practices carried out by public entities when they resort to the market (a) due to their need to comply with their operational needs – buyer– or (b) to accomplish the tasks in the public interest they have been vested with – offeror–. That is so because, in principle, competition rules are intended to assess the performance of undertakings in the market. However, it is undebatable that when a contracting authority sources goods, works or services –either in the public interest or to meet its operational needs–, it may generate competitive distortions. All in all, anticompetitive behaviors do negatively impact the competitive dynamics of a procuring process. In conclusion, contracting authorities must remain observant in order not to unwillingly harm the competitive conditions under which their works, goods and services are procured. In any case, practice shows that contracting authorities often fail to identify the practices that, when procuring a particular good, work or service, may be considered to hamper competition. Furthermore, contracting authorities may be tempted to hinder the establishment of an EU-wide procurement market working under conditions of vigorous competition and they may ultimately be captured by national tendencies towards protectionism or preferential treatment, to the detriment of an efficient expenditure of public funds. With a view of underlying the importance of our study, one is obliged to address the relevance of public procurement in the EU. Within the EU, public procurement represents an annual expenditure of around 14% of GDP on the purchase of services, works and supplies by over 250.000 public authorities. In this scenario, the design of healthy public procurement processes comes as essential for the maintenance of the single market. In this very same line, the EU judicature has expressed that competition rules also are fundamental provisions for the functioning of the single market. Consequently, Member States must remain vigilant in order to deter any procuring practice that may not be compliant with the requirements of a system operating under undistorted competition.