The way in which that the EU can work strategically to create a more level playing field globally is manifold. Creating a level playing field can be made through adopting legislation that takes consideration of not often mandatory rules on sustainable and environmental factors set by the WTO, for example. For example, Maria Andhov in her article “contracting authorities and strategic goals of the public procurement – A relationship defined by discretion?” Andhov argues that environmental and social issues where not always seen as objectives that are connected with the procurements functional objective and that these were seen as secondary to the cost benefits. Social and environmental considerations are seen as an option or a policy statement and enshrined within Article 18(2) of Directive 2014/24/EU. Andov states that albeit this is now included in explicit form in the directive “Article 18(2) may become a policy statement rather than a valuable legal provision”[11]After all, there is a “growing policy interest in re-orienting public expenditure towards solutions that are more compatible with environmental sustainability, promote social policy considerations, or support innovation”[12]
According to me, it seems that on a global level, environmental issues and concerns are explicitly incorporated within the framework; however that is not the case for procurement criteria within the European Union. On a global level and according to the revised GPA,[13] a contract may be awarded to the supplier that “has submitted (a) the most advantageous tender; or (b) where price is the sole criterion, the lowest price” (Art. XV). Similar to the MEAT criterion in the EU Procurement Directives, the “most advantageous tender” must be “based solely on the evaluation criteria specified in the notices and tender documentation”. The evaluation criteria may include, among others, price and other cost factors, quality, technical merit, environmental characteristics and terms of delivery”. A weighting scheme must secure transparency as to the relative importance of the criteria. Protecting the environment and promoting the conservation of natural resources are now explicitly recognised as elements in the technical specifications (Art. X). GATT exceptions also states something which EU law can work more towards achieving yet it does not as of yet
“General exceptions through its Non-trade objectives
Article III:2- Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between Parties where the same conditions prevail or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent any Party from imposing or enforcing measures: a. necessary to protect public morals, order or safety; b. necessary to protect human, animal or plant life or health; c. necessary to protect intellectual property; or d. relating to goods or services of persons with disabilities, philanthropic institutions or prison labour.”
All in all, one way in which that the EU can strategically work towards being on the same level playing field as WTO frameworks or the GPA is by making it law or a requirement by which a bidding party may win a tender based on social and environmental criteria. As of now it is only an option.
To conclude question 1 in general and also taking into account the elaborate statement made by Executive Vice-President Margrethe Vestager, in charge of competition policy: “The world is changing fast and it is important that the competition rules are fit for that change. Our rules have an inbuilt flexibility which allows us to deal with a broad range of anti-competitive conduct across markets. We see, however, that there are certain structural risks for competition, such as tipping markets, which are not addressed by the current rules. We are seeking the views of stakeholders to explore the need for a possible new competition tool that would allow addressing such structural competition problems, in a timely and effective manner ensuring fair and competitive markets across the economy.” [...]
[1] https://www.oecd.org/trade/topics/levelling-the-playing-field/ [2] https://www.oecd.org/trade/topics/levelling-the-playing-field/ [3] https://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm [4] https://ec.europa.eu/trade/policy/in-focus/ceta/ceta-chapter-by-chapter/ [5] The Commission State Aid Action Plan, COM (2005) 107 final, p. 4. [6] ECJ - Judgments of 3 October 2000, University of Cambridge, C-380/98, EU:C:2000:529, paragraph 16; of 18 October 2001, SIAC Construction, C-19/00, EU:C:2001:553, paragraph 32; and of 24 January 2008, Lianakis and Others, C-532/06, EU:C:2008:40, paragraph 39). [7] C-513/99 Concordia Bus [2002] ECR I-7213 [8] https://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm [9] (C-324/98, Telekom Austria) [10] cases 31/87 Beentjes (respect all relevant provisions of EU law), 45/87, Commission v Ireland [11] M Andhov, “contracting authorities and strategic goals of the public procurement – A relationship defined by discretion?” page 137 [12] https://www.econstor.eu/bitstream/10419/125655/1/WWWforEurope_Policy_Paper_028.pdf [13] See WTO homepage https://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm [14] Case C-41/90 Höfner and Fritz Elser v Macrotron GmbH [1992] ECR I-1979, para 21. [15] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) [16] Case T-41/96, Bayer AG v Commission [17] Case 48/69, Suiker Unie v Commission, para 64 [18] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) 925 [19] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) 925 [20] Commission v. Anic Partecipazioni SpA, (-49/92 , ECLI:EU:C:1999:356 para 112. [21] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) 925 [22] Eturas UAB and Others v. Lietuvos Respublikos konkurencijos taryba, C - 74/14 [23] https://www.concurrences.com/en/dictionary/anticompetitive-objet-or-effect#:~:text=In%20other%20words%2C%20for%20the,of%20competition%20as%20its%20object.&text=Restrictions%20of%20competition%20by%20object,the%20potential%20of%20restricting%20competition. [24] ECJ - Judgments of 3 October 2000, University of Cambridge, C-380/98, EU:C:2000:529, paragraph 16; of 18 October 2001, SIAC Construction, C-19/00, EU:C:2001:553, paragraph 32; and of 24 January 2008, Lianakis and Others, C-532/06, EU:C:2008:40, paragraph 39). [25] C-513/99 Concordia Bus [2002] ECR I-7213 [26] C-513/99 Concordia Bus [2002] ECR I-7213 [27] Case C-368/10 Commission v Netherlands (“Dutch coffee” /Max Havellaar) [28] Case C-368/10 Commission v Netherlands (“Dutch coffee” /Max Havellaar) [29] C-513/99 Concordia Bus [2002] ECR I-7213 [30] Commission v Germany (C-17/09). [31] (C-324/98, Telekom Austria) [32] (C-71/92, Commission v. Spain) [33] C-324/98 Telecom Austria, para 62) [34] https://www.concurrences.com/en/dictionary/anticompetitive-objet-or-effect#:~:text=In%20other%20words%2C%20for%20the,of%20competition%20as%20its%20object.&text=Restrictions%20of%20competition%20by%20object,the%20potential%20of%20restricting%20competition.
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