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Published online by Cambridge University Press: 16 May 2016
Here I reflect on the role of subjective or intentional elements in EU economic law prohibitions, particularly in relation to rules concerning public administration. From a normative perspective, it is desirable to suppress the need for an assessment of subjective intent and to proceed with an objectified enforcement of such prohibitions. With this in view, I consider public procurement and Member State aid rules as two examples of areas of EU economic law subjected to interpretative and enforcement difficulties due to the introduction – sometimes veiled – of subjective elements in their main prohibitions. I establish parallels with other areas of EU economic law – such as antitrust, non-discrimination law and the common agricultural policy – and seek benchmarks to support the main thesis that such intentional elements need to be ‘objectified’, so that EU economic law can be enforced against the public administration to an adequate standard of legal certainty. This mirrors the development of the doctrine of abuse of EU law, where a similar ‘objectification’ in the assessment of subjective elements has taken place.
I draw on the case law of the Court of Justice of the European Union to support such ‘objectification’ and highlight how the Court has been engaging in such interpretative strategy for some time. The paper explores the interplay between this approach and more general protections against behaviour of the public administration in breach of EU law: the right to good administration in Article 41 of the Charter of Fundamental Rights of the European Union and the doctrine of State liability for infringement of EU law. I conclude with the normative recommendation that the main prohibitions of EU economic law should be free from subjective elements focused on the intention of the public administration.
ORCiD: 0000-0002-3602-1191. I presented this paper at a lunchtime seminar of the Michaelmas term 2015–16 organised by the Centre for European Legal Studies (CELS), Faculty of Law, University of Cambridge. I am thankful to Prof Kenneth A Armstrong for the invitation and to all attendees for their useful comments and feedback, in particular that of Advocate General Eleanor Sharpston QC, Dr Okeoghene Odudu and Darren Harvey. I am also indebted to Prof Roberto Caranta, Prof Tony Prosser, Dr Jule Mulder, Prof Cosmo Graham and Prof Francisco Marcos for comments on a previous draft. I am also thankful for the insightful discussions I had with Dr Daniel Attenborough, Dr Sean Thomas and Dr Paolo Vargiu during the preparation of this paper. The final version of the paper also benefitted from the comments of two anonymous reviewers for the Cambridge Yearbook of European Legal Studies, for which I am also grateful. The usual disclaimer applies. Further comments welcome ([email protected]).
1 For discussion of broader implications, see Armstrong, KA, ‘The Character of EU Law and Governance: From “Community Method” to New Modes of Governance’ (2011) 64 (1) Current Legal Problems 179 CrossRefGoogle Scholar.
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5 For a similar discussion in the area of US antitrust law, see R Cass and K Hylton, Antitrust Intent (Center for Business and Government, 2001) Regulatory Policy Program Working Paper RPP-2001-12 http://www.hks.harvard.edu/m-rcbg/research/rpp/RPP-2001-12.pdf.
6 See note 75 below and accompanying text.
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10 As mentioned in note 4 above, this discussion is somehow related to the issue of imputation of criminal liability to corporate entities or, more closely, the imputability of infringements of competition law (as further discussed in Part IV below). On the imputation of criminal liability to corporate entities, see eg Foerschler, A, ‘Corporate Criminal Intent: Toward a Better Understanding of Corporate Misconduct’ (1990) 78 (5) California Law Review 1287 CrossRefGoogle Scholar; and Clarkson, CMV, ‘Kicking Corporate Bodies and Damning Their Souls’ (1996) 59 (4) Modern Law Review 557 CrossRefGoogle Scholar.
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20 For instance, where issues of EU competence and its possible abuse were discussed, such as in the famous Tobacco advertising case; see Germany v Parliament and Council, C-380/03, EU:C:2006:772, paras 32–34. For discussion, stressing that ‘the Court chose not to place any reliance on the subjective views of the political institutions in drafting and ultimately adopting the measure’, see Weatherill, S, ‘The Limits of Legislative Harmonization Ten Years after Tobacco Advertising: How the Court’s Case Law has become a “Drafting Guide”’ (2011) 12 (3) German Law Journal 827 Google Scholar.
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22 See, generally, the discussion following Centrafarm, C-3/78, EU:C:1978:174, which was criticised for the apparent creation of a subjective test later abandoned; Torremans, P, Holyoak and Torremans Intellectual Property Law, 7th ed (Oxford University Press, 2013), p 527 CrossRefGoogle Scholar. See also Baden-Fuller, C, ‘Economic Issues Relating to Property Rights in Trademarks: Export Bans, Differential Pricing, Restrictions on Resale and Repackaging’ (1981) 6 (3) European Law Review 162 Google Scholar.
23 For a critical view, see de Waele, H, ‘The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment’ (2010) 6(1) Hanse Law Review 3 Google Scholar.
24 For extended discussion, see Saydé, A, Abuse of EU Law and Regulation of the Internal Market (Hart, 2014)Google Scholar and the contributions in Feria, R de la and Vogenauer, S, Prohibition of Abuse of Law—A New General Principle of EU Law? (Hart, 2011)Google Scholar.
25 See Bobić, A, Prohibition of Abuse of Rights in the EU (2011) LLM Thesis, University of Zagreb, available at https://www.pravo.unizg.hr/_download/repository/Bobic_thesis_final.pdf Google Scholar.
26 Ibid, p 14 ff. See also Lenaerts, A, ‘The General Principle of the Prohibition of Abuse of Rights: A Critical Position on its Role in a Codified European Contract Law’ (2010) 18 (6) European Review of Private Law 1121 Google Scholar; and Sørensen, KE, ‘Abuse of Rights in Community Law: A Principle of Substance or Merely Rhetoric?’ (2006) 43 (2) Common Market Law Review 423 Google Scholar. This interpretive strategy was proposed by Advocate General Lenz in TV10 v Commissariaat voor de Media, C-23/93, EU:C:1994:251, paras 61, 65–66. It has been applied in particularly clear terms by the Court in Halifax and Others, C-255/02, EU:C:2006:121, para 75. Recently, see Slancheva sila, C-434/12, EU:C:2013:546, paras 39, 41. See also Commission v Hungary, C-115/13, EU:C:2014:253, para 33. Interestingly, the same type of assessment has been applied to disputes between Member States where arguments regarding potential abuses of EU law were raised; see Hungary v Slovakia, C-364/10, EU:C:2012:630, paras 56–62.
27 Baciu, Cf I, ‘The “Abuse of Rights” in Light of the CJEU Case Law: A Radiography of Decision C-434/12’ (2014) 9 (2) European Procurement & Public Private Partnership Law Review 138 Google Scholar.
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29 Impresa Pizzarotti, C-213/13 EU:C:2014:2067, para 63, with reference to Commission v Portugal, C-70/06, EU:C:2008:3, para 40; Mikhaniki, C-213/07, EU:C:2008:731, para 55; Commission v Cyprus, C-251/09, EU:C:2011:84, paras 37 to 39; and Manova, C-336/12, EU:C:2013:647, para 28.
30 Hochtief and Linde-Kca-Dresden, C-138/08, EU:C:2009:627, para 47, with references to Fracasso and Leitschutz, C-27/98, EU:C:1999:420, para 26; Lombardini and Mantovani, C-285/99 and C-286/99, EU:C:2001:640, para 34; Universale-Bau, C-470/99, EU:C:2002:746, para 89; and Sintesi, C-247/02, EU:C:2004:593, para 35.
31 For extended discussion, see Sanchez-Graells, A, ‘Truly Competitive Public Procurement as a Europe 2020 Lever: What Role for the Principle of Competition in Moderating Horizontal Policies?’ (2016) 22 (2) European Public Law Journal 377 Google Scholar.
32 Hansen, C Risvig, Contracts Not Covered or Not Fully Covered by the Public Sector Directive (DJØF, 2012)Google Scholar.
33 The issue is particularly clear when it comes to the case law on the undue recourse to negotiated and other less than fully-competitive procedures. For discussion, see Graells, A Sanchez, Public Procurement and the EU Competition Rules, 2nd ed (Hart, 2015) pp 258–280 Google Scholar.
34 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [2014] OJ L 94/65.
35 For a first attempt at the interpretation of this principle, see Sanchez-Graells, A, ‘Public Procurement: A 2015 Updated Overview of EU and National Case Law’ (2015) eCompetitions 40647 Google Scholar; and Sanchez Graells, see note 33 above, pp 207–214. Cf Arrowsmith, ‘Purpose of the EU Procurement Directives’, see note 28 above, and Kunzlik, P, ‘Neoliberalism and the European Public Procurement Regime’ (2012–2013) 15 Cambridge Yearbook of European Legal Studies 283 CrossRefGoogle Scholar.
36 European Commission, Proposal for a Directive of the European Parliament and of the Council on public procurement, 20 December 2011, COM(2011) 896 final, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0896:FIN:EN:PDF.
37 This intentional element is common to different language versions of the Directive: ‘intención’ (Spanish), ‘intention’ (French), ‘intento’ (Italian), ‘intuito’ (Portuguese) or ‘Absicht’ (German). Thus, it cannot be justified as a deficiency in translation or an error in the wording of the provision.
38 See Presidency compromise text of 24 July 2012, 12878/12, 2011/0438 (COD), http://data.consilium.europa.eu/doc/document/ST-12878-2012-INIT/en/pdf.
39 Art 15. For discussion of the legislative process that led to such alteration of the drafting, see Sanchez-Graells, A, ‘A Deformed Principle of Competition? The Subjective Drafting of Article 18 (1) of Directive 2014/24’ in GS Ølykke and A Sanchez-Graells (eds), Reformation or Deformation of the EU Public Procurement Rules (Edward Elgar) forthcoming Google Scholar. See also Sanchez-Graells, A, ‘Public Procurement and Competition: Some Challenges Arising from Recent Developments in EU Public Procurement Law’ in C Bovis (ed), Research Handbook on EU Public Procurement Law, Research Handbooks in European Law Series (Edward Elgar, 2016)Google Scholar.
40 See Arts 2(1) and 13 of Directive 2014/24. For discussion on the coverage of the Directive, see S Arrowsmith, The Law of Public and Utilities Procurement. Regulation in the EU and the UK, 3rd ed, vol 1 (Sweet & Maxwell, 2014), pp 339–383.
41 See note 37 above.
42 See Article 5(3) of Directive 2014/24, which absorbed the content of Article 9(7) of Directive 2004/18 of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L 134/114. See also Article 6 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts [1993] OJ L 199/54.
43 As stressed very recently, see Spain v Commission, T-384/10, EU:T:2013:277, paras 65–68 (emphasis added); the Judgment has, however, been set aside on appeal by the Court on procedural issues (disregard of a time limit by the Commission); see Spain v Commission, C-429/13 P, EU:C:2014:2310. Nonetheless, the same wording had been used in Commission v France, C-16/98, EU:C:2000:541; Commission v Italy, joined cases C-187/04 and C-188/04, EU:C:2005:652; Auroux and Others, C-220/05, EU:C:2007:31; and Commission v Germany, C-574/10, EU:C:2012:145.
44 Swoboda, C-411/00, EU:C:2002:660, paras 57–60.
45 Commission v Italy, C-412/04, EU:C:2008:102, paras 72–74.
46 Opinion of AG Trstenjak in Commission v Germany, C-271/08, EU:C:2010:183, para 165 (emphasis added and references omitted). Cf Opinion of AG Jacobs in Commission v France, C-16/98, EU:C:2000:99, para 38, where the AG stresses that the intentional or subjective element cannot be eliminated, but suggests that the applicable test still lies on whether the decision under assessment can be ‘justified on objective grounds’.
47 Spain v Commission, T-384/10, EU:T:2013:277, para 95 (references omitted).
48 Such grounds need to be interpreted strictly, as repeatedly stressed by the Court. See Commission v Italy, 199/85, EU:C:1987:115, para 14; Commission v Italy, C-57/94, EU:C:1995:150, para 23; Commission v Germany, C-318/94, EU:C:1996:149, para 13; Commission v Germany, joined cases C-20/01 and C-28/01, EU:C:2003:220, para 58; Stadt Halle and RPL Lochau, C-26/03, EU:C:2005:5, para 46; and Commission v Germany, C-480/06, EU:C:2009:357, paras 34–35.
49 See Art 2d of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC. Consolidated version available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1989L0665:20080109:en:PDF.
50 Opinion of AG Bot in Fastweb, C-19/13, EU:C:2014:266, paras 16, 92, 100, 115 (emphasis added).
51 Fastweb, C-19/13, EU:C:2014:2194, para 50 (emphasis added). See Brown, A, ‘When Will Publication of a Voluntary Ex Ante Transparency Notice Provide Protection against the Remedy of Contract Ineffectiveness? Case C-19/13 Ministero Dell’interno v Fastweb Spa’ (2015) 24 (1) Public Procurement Law Review NA10Google Scholar.
52 See Caranta, R, ‘Remedies in EU Public Contract Law: The Proceduralisation of EU Public Procurement Legislation’ (2015) 8 (1) Review of European Administrative Law 75 CrossRefGoogle Scholar, pp 83–84.
53 Commission v Austria (Mödling), C-29/04, EU:C:2005:670.
54 Ibid, paras 40–42.
55 Similar tests have been proposed in relation to choice of procedures, which has always been limited by exhaustive lists of grounds; see Arrowsmith, S and Treumer, S, ‘Competitive Dialogue in EU Law: A Critical Review’ in S Arrowsmith and S Treumer (eds), Competitive Dialogue in EU Procurement (Cambridge University Press, 2012), p 46 CrossRefGoogle Scholar (with reference to decisions made by a ‘reasonable contracting authority’); and Telles, P and Butler, L, ‘Public Procurement Award Procedures in Directive 2014/24/EU’ in F Lichère et al (eds) Novelties in the 2014 Directive on Public Procurement (DJØF, 2014), p 146 Google Scholar (who would nonetheless allow contracting authorities to make subjective assessments).
56 This is the approach to the enforcement of the prohibition of Article 102 TFEU in cases of predatory pricing. For discussion, see Part IV.A below.
57 Similarly, this was the interpretation presented by the Commission when the rule preventing the artificial split of contracts was first assessed; see European Commission, Guide to the Community Rules on Public Works Contracts other than in the Water, Energy, Transport and Telecommunications Sectors (Directive 93/37/EEC) (1993) 17, http://ec.europa.eu/internal_market/publicprocurement/docs/guidelines/works_en.pdf.
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74 Ferriere Nord v Commission, T-143/89, EU:T:1995:64, para 41. This has been repeatedly emphasised. Most recently, in Romana Tabacchi v Commission, T-11/06 T:2011:560, para 227. See also Voorde, note 12 above, p 558 fn 3.
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77 However, subjective elements can be relevant in terms of determination of the amount of the fine, and there are cases where the impossibility or high difficulty in assessing the existence of an anticompetitive conduct has been taken into account by the imposition of symbolic or token fines. For an overview, see Colino, S Marco, Competition Law of the EU and UK, 7th ed (Oxford, 2011), pp 111–112 Google Scholar.
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82 Ibid, para 17.
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86 See Judgment in van der Ham and van der Ham-Reijersen van Buuren, C-396/12, EU:C:2014:98, para 35.
87 van der Ham, EU:C:2014:98, para 41.
88 Voorde, see note 12 above, pp 564–566.
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95 Dutheil de la Rochère, see note 93 above, p 168.
96 Hofmann, HCH and Mihaescu, C, ‘The Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as the Test Case’ (2013) 9 (1) European Constitutional Law Review 73 CrossRefGoogle Scholar, p 87.
97 Craig, see note 89 above, p 1085. Interestingly, the GC expressly highlights the link between the duty to give reasons and the right to effective judicial protection under Article 47 Charter. See Sviluppo Globale GEIE v Commission, T-183/10, EU:T:2012:534, para 40. See also A Sanchez Graells, ‘Duty to give reasons under EU procurement law and EU trademark law: is there a contradiction?’ (How to Crack a Nut, 16 October 2012) http://howtocrackanut.com/blog/2012/10/duty-to-give-reasons-under-eu.html.
98 Along these lines, the fact that a specific EU regime requires the public authority to follow a given procedure to channel its objectively good reasons or concerns will prevent it from acting outside of that procedure and, consequently, those will not be good reasons for the purposes of justifying the behaviour. To that effect, see Synthon, C-452/06, EU:C:2008:565, paras 41 to 43.
99 In the area of standardisation and public procurement, see Medipac - Kazantzidis, C-6/05, EU:C:2007:337. The case is interesting because it limits the scope of ‘acceptable’ objectively good reasons that the public administration is allowed to adduce in justification of a behaviour that infringed secondary EU economic law.
100 The issue is very similar to the assessment of non-economic justifications provided to derogate from EU competition law rules. For discussion and further references, see Sanchez Graells, note 33 above, pp 185–193.
101 For general discussion, see Craig and Búrca, see note 60 above, pp 257–261.
102 This requirement has been found to be the most difficult condition for a claimant to establish in a State liability case; see Lock, T, ‘Is Private Enforcement of EU Law through State Liability a Myth? An Assessment 20 Years after Francovich’ (2012) 49 (5) Common Market Law Review 1675 Google Scholar, p 1693.
103 Brasserie du Pêcheur v Bundesrepublik Deutschland and The Queen / Secretary of State for Transport, ex parte Factortame and Others, C-46/93 and C-48/93, EU:C:1996:79.
104 Ibid, paras 55, 56. See also Haim, C-424/97, EU:C:2000:357; and Evans, C-63/01, EU:C:2003:650.
105 Robins and Others, C-278/05, EU:C:2007:56, para 70; Synthon, EU:C:2008:565, para 37; Specht and Others, C-501/12, EU:C:2014:2005, para 102.
106 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland), C-5/94, EU:C:1996:205, para 28; Dillenkofer and Others, C-178/94, C-179/94 and C-188/94 to C-190/94, EU:C:1996:375, para 25, and Stockholm Lindöpark, C-150/99, EU:C:2001:34, para 40. See also Robins, EU:C:2007:56, para 71; Synthon, EU:C:2008:565, para 38.
107 Synthon, EU:C:2008:565, para 39. See, to that effect, Robins and Others, EU:C:2007:56, paras 72 and 73.
108 See Tridimas, T, ‘Liability for Breach of Community Law: Growing Up and Mellowing Down?’ (2001) 38 (2) Common Market Law Review 301 CrossRefGoogle Scholar, p 310. For discussion, see Cruz, J Baquero, ‘ Francovich and Imperfect Law’ in M Poiares Maduro and L Azoulai (eds) The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart, 2010), p 423 ffGoogle Scholar.
109 Brasserie du Pêcheur and Factortame, EU:C:1996:79, para 80. The situation is different when it comes to the liability of EU institutions, where the case law regarding fault requirements is much less clear. See Aalto, P, Public Liability in EU Law: Brasserie, Bergaderm and Beyond (Hart, 2011), pp 47–51 Google Scholar.
110 Indeed, there is a distinction between establishing liability independently of intention and then imposing a remedy that takes intention into account. This can be particularly relevant in relation to compensation claims.
111 Larsy, C-118/00, EU:C:2001:368, paras 39 ff.
112 Synthon, EU:C:2008:565, paras 41–43.
113 Robins, EU:C:2007:56, paras 78–82. In less clear terms, Specht, EU:C:2014:2005, para 103.
114 For discussion of the standard, see Beutler, B, ‘State Liability for Breaches of Community Law by National Courts: Is the Requirement of a Manifest Infringement of the Applicable Law an Insurmountable Obstacle?’ (2009) 46 (3) Common Market Law Review 773 Google Scholar. Zingales, Cf N, ‘Member State Liability vs. National Procedural Autonomy: What Rules for Judicial Breach of EU Law?’ (2010) 11 (4) German Law Journal 419 Google Scholar.
115 Traghetti del Mediterraneo, C-173/03, EU:C:2006:391, para 44.
116 Köbler, C-224/01, EU:C:2003:513, paras 53–56.