The Failure of the Market Economy Investor Principle. An Assessment of the Incompatibility between the MEIP and Environmental Protection in Public Procurement Law.

Abstract: The market economy investor principle (the MEIP) is a test that is used in order to decide if a benefit or advantage is at hand, and hence if a measure constitutes state aid in accordance with Article 107 (1) TFEU, which is done by assessing of the Member State has acted in the same way as a private investor would have done. In other words, the MEIP only take micro-economic aspects into account, which makes it problematic when applying the test in cases that concern public procurement measures due to the fact that Member States always have to consider aspects of macro-economic nature, such as environmental protection, as the aim of any purchase through a public procurement procedure is to satisfy public needs in one way or another. Through the introduction of the new Public Procurement Directives in 2014, Member States are obliged to take environmental aspects into consideration when a public tender is carried out. It is therefore rather questionable if the MEIP actually is a suitable test that should be used in order to decide if a measure such as environmental award criteria should be regarded as state aid, as the design of the MEIP that is used today automatically classifies measures as such as a benefit or advantage. In other words, the MEIP makes it hard (or even impossible) for the Member States to use environmental award criteria in a public tender procedure, because environmental considerations is a macro-economic aspect that will not be included in the MEIP. Hence, the use of green clauses will always fail the test, which is problematic as the bigger picture shows that environmental considerations have to be taken into account by the Member States as well as the EU itself. Thus, this thesis examines what the problems with the current MEIP are in cases concerning environmental award criteria, as well as it proposes a new test, the Purchaser Principle, which looks at both micro- and macro-economic aspects and therefore makes environmental award criteria fall outside the scope of the state aid rules.