Competition within EU Public Procurement Regulation and Practice : When EU Competition Law Remains Silent, EU Competition Policy Speaks

The economic importance of public procurement within the EU is undeniable, given its pre-eminent role in the overall economic performance of the Union. Its regulation is thus conceived as a priority. Further, the creation of an EU-wide level playing field for economic operators is submitted as indispensable to combat Member States’ preferential treatment towards their domestic firms. In this scenario, the achievement of a Single Public Procurement Market, working under conditions of vigorous competition, is menaced by the immunity from competition constraints of some public behaviours. In this research we are going to analyse the different public activities that may distort the competitive dynamics of the market. First we are going to evaluate the adequacy of not submitting certain public activities to the EU Competition law. Then, some clarifications will be made and the material scope of the EU Competition law will be expanded as to cover public non-regulatory economic activities. Finally, with regard to public regulatory activities and public non-regulatory non-economic activities, it will be argued, with a view of achieving the Single Public Procurement Market, the imperative necessity of observing competition constraints and, consequently, of submitting such activities to EU Competition policy considerations