Assessing Public Administration’s Intention in EU Economic Law : Chasing Ghosts or Dressing Windows?

This paper looks at public procurement and 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. The paper establishes parallels with other areas of EU economic law, such as antitrust and non-discrimination law, and seeks 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. The paper draws on the case law of the Court of Justice of the European Union to support such ‘objectification' of intentional elements in EU economic law, and highlights how the Court has been engaging in such interpretative strategy for quite a long time. It then goes on to explore the interplay between such an approach and more general protections against behaviour of a public administration in breach of EU law: ie 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. The paper concludes with the normative recommendation that EU economic law should be free from subjective elements in its main prohibitions