Suchergebnisse

The ECJ has frequently stated that it is a general rule that "economic" aims are precluded as justifications for restrictions on free movement. This on its face suggests that free movement always and automatically trumps national economic interests. However, in reality the Court's approach to balancing these different interests is much more complex: often, and increasingly, interests of an economic nature are in fact recognised in the Court's case law. This paper suggests that this rule precluding economic aims as justifications therefore requires reformulating. It is argued that this is necessary not merely to reflect the reality of the case law, but also to improve the transparency and quality of judicial decision-making. The paper then also examines how the current prohibition might be reformulated in light of both the policy considerations underlying the current formulation (embodying a degree of caution in accepting economic interests) and the problems with that formulation. It is suggested that it is appropriate to maintain a kind of rule against economic objectives, but a more nuanced one concerned solely with measures that have a protectionist aim – the original target of the "general" rule prohibiting economic justifications. On the other hand, with measures that do not have protectionist aims, recognition of economic objectives should be determined on a case-by-case basis that is attuned to the wide variety of economic interests that exist. An important group of measures within the latter category comprises those directed at protection of Member States' budgetary interests. These warrant special attention and the paper also examines how these interests can be suitably addressed within the context of the framework proposed above. According to the Court's current approach, in theory budgetary justifications are prohibited as a consequence of the rule against economic justifications in general. However, it is explained that, like certain other economic justifications, they are in reality often permitted, ...

AbstractThere 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.