General principles in EU public procurement law

Abstract

This chapter examines general principles in EU public procurement law and explores how they ‘behave’ in this specific sub-field. The chapter will consider in broad terms where, and in what ways, the general principles have had the most significant impact on public procurement, both under the procurement directives and under the TFEU. It will commence with a discussion of the development of the CJEU’s case law, and will then consider what the impact of the CJEU’s case law has been on the procurement policies of the Member States. The editors, in their introduction to the collection this chapter appears in, identify what has been the overarching question about general principles that has been considered in the context of public procurement: whether, through its usage of general principles in case law, the CJEU has more or less ‘merged’ the TFEU and directive-based procurement regimes, in a way that makes life significantly more difficult for both the Member States and public purchasers in practice. The implications of such a ‘merger’ would be that, to the detriment of legal certainty, the EU’s explicit competences in procurement law have been supplemented by further legal obligations that the EU legislature has been uninvolved in. The chapter will conclude with a few thoughts in response to that question.