2 - EC regulation of public procurement

Summary

Introduction

In this chapter we turn to an overview of the main legal rules applying to EC public procurement. This chapter serves merely as an introduction; the detailed application of the rules to horizontal policies is examined in chapter 4.

EC law takes a graduated approach to regulation, such that we may divide procurement into three categories. The first covers procurement that is outside the EC Treaty altogether, the second procurement that is within the Treaty but outside the procurement directives, and the third procurement within the directives. We will consider each in turn.

Procurement outside the scope of the Treaty

A procurement that is outside the EC Treaty is not subject to EC regulation at all. In the context of public contracts, particularly important in this regard is Article 296(1)(b) EC, which excludes from the Treaty certain measures relating to ‘the production of or trade in arms, munitions, and war material’. This takes outside the Treaty – and thereby also the procurement directives – public contracts for ‘hard defence material’ such as weapons and tanks, provided, however, that there is a security justification for exclusion.

Procurement within the Treaty but outside the procurement directives

Contracts within the scope of the Treaty may be outside the procurement directives, either because they are below the financial thresholds or because they are excluded by reason of their subject matter.