The general principle of competition is dead

Abstract

In this article, I contend that an updated, doctrinal analysis of the main legal sources of the EU public procurement directives clearly gives the conclusion that there is no general principle of competition in EU public procurement law. The wording of the directives; context, including the preparatory work; and the newest case law from the CJEU all discard such a general principle. Some recent analyses of the topic have suffered from a lack of differentiation between principles. Article 18 on principles of procurement does not contain a general principle of competition, but specific prohibitions on anti-competitive behaviour. Somewhat paradoxically, the court’s first formulation of a "principle of effective competition" in May 2022 underscores that there is no general principle of competition as alleged in academic literature.