EU PUBLIC PROCUREMENT LAW - Can sustainability lawfully limit competition?
Abstract: This thesis has as a purpose the investigation of sustainable requirements compliance with regards to competition in public procurement contracts. This paper looks into Directive 2014/24 and notably its primary law influence in order to understand the legal foundations underlying sustainability and competition. It showcases, firstly, that Article 18(1) wording and legal interpretation provides a legal compliance of sustainable requirements if they remain in accordance with the fundamental principles of procurement law and therefore, can lawfully reduce competition. It also highlights that the primary sources of law (Art. 52 TFEU) provide for the exemption an 'overriding reasons in the public interest,' which sustainability measures could be part of, and therefore requiring a higher legal constraint than competition. In the same way, case law elaborates on the general principles of public procurement as deemed to be respected and are the ones highlighted when assessing the impact of sustainability. Finally, this paper provides for a broader perspective of sustainability compliance in the Member States and their various character with jurisdictions like Scotland making sustainability increasingly binding while some like Hungary only constrain competition.
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