On Thursday 4 December Sue Arrowsmith will give a lecture in the Current Legal Problems series at University College London: “Rethinking 'economic' derogations and justifications under the EU's free movement rules: Proposals for a new approach and a taxonomy”. The lecture draws on her work on public procurement and will include an analysis of how public procurement measures should be treated in the context of this subject. (See further the outline below).
Further details and on-line booking
Outline
The European Court of Justice has stated in many cases a general principle that “economic” aims do not fall within the explicit derogations from the Treaty’s free movement rules, and also cannot constitute mandatory requirements or imperative reasons in the public interest that can justify measures that hinder trade. This general principle has since been invoked in practice by the Court in dealing with measures that have a wide variety of different aims.
It is contended, however, such a general principle is not appropriate for many of these cases and also is not appropriate for dealing with other types of aims (not yet considered by the Court) that could be termed as economic in a broad sense. Rather, a principle that economic aims cannot be used at all as justification for state measures should be applied only to certain very limited types of economic aims, of a kind that were addressed in the Court’s early case law on this subject – mainly measures directed at securing a market advantage (whether temporary or permanent) for national industry that is not competitive. Based on the historical evidence this, it is contended, is what was envisaged when the principle regarding economic aims was originally laid down by the Court.
Other aims that have been, or could be, termed by the Court as “economic” should be dealt with differently. Thus it is suggested, for example, that some of these should be accepted in principle as falling with explicit derogations or as mandatory requirements/imperative reasons in the public interest (although they may be difficult to invoke in practice), whilst others (certain measures affecting public procurement, such as product quality requirements and award criteria relating to price and quality) should not be regarded as restricting access to the market at all (the doctrine of “excluded buying decisions”): hence no justification will be required.
This lecture will propose a taxonomy of the different kinds of measures that are economic in a broad sense, and propose for each different approaches to their treatment under the free movement rules.