Implications of the Lianakis decision

The Public Procurement Directives (the ‘Directives’) not only promote the principles of free movement and equal treatment but also encourage the importance of delivering value for money for the taxpayer. As regards the latter assertion, the Directives do not differ from private procurement which is also aimed at delivering the best value for money for the purchaser. They do of course also have the objective of deepening the internal market. While these two should lie comfortably together, the public sector may not always be able to follow all developments pursued in the private sector. Since 1993, procurement law has developed at an extraordinary pace, perhaps more so than any other area of European law. It has generated much work for lawyers. It has not generated much work for economists and has possibly frustrated public procurement specialists originating from the private sector who feel they are more constrained than is necessary in seeking to deliver value for money. The European Court of Justice (the ‘Court’) has been exceptionally proactive in pushing the Directives beyond where the Member States had perhaps originally envisaged them travelling. The early landmark decisions such as the Storebealt Bridge decision, ¹ the Universal Bau decision ² and the Teleaustria decision ³ have by and large been understood and perhaps even welcomed by lawyers, as the purpose that these decisions sought to achieve was not difficult to understand. The concepts of transparency, proportionality and equal treatment are certainly ones with which we lawyers are very familiar. This chapter seeks to demonstrate that the Lianakis decision ⁴ is not supported by any of the above rationales. It is not supported by any substantive jurisprudence, nor is it supported by the texts of the Directives, ⁵ and is incompatible with sound commercial and economic reasoning.