Public procurement between sustainability goals and competitive purposes: in search of a new equilibrium

Abstract

The first part of the essay analyses the most recent legislative and jurisprudential innovations, also linked to Green Deal and Next Generation EU, on sustainable public procurement, which denotes their strengthening along evolutionary lines of tendential reciprocity between the European and national levels. And indeed, while the European legal system, after some hesitation, seems to have decisively taken the path of the so-called mandatory approach (with greater attention to social considerations), the Italian legal system is gradually metabolizing the supranational approach, as demonstrated, for example, by the greater discretionary power given to contracting authorities.

The second part concerns a topic closely related to the social or strategic function of public procurements, such as identifying the exact role and contents of the competitive purpose of public procurement regulations. In particular, after confuting theses that recognize a central role for the competition principle in the sector, I propose a more restrictive interpretation of its competitive purposes. In this perspective, I emphasize the differences between EU internal market law and antitrust law and, above all, I have highlight the role that actually falls to the public administration in the events analyzed: not a regulator of competition between businesses, but a subject that turns to the market for works, supplies or services which satisfy previously identified needs. In this direction, I focus both on the so-called favor partecipationis – for which I suggest a more appropriate qualification and to avoid its absolutization – and on the principle of proportionality, of which I have proposed a toned down and less rigorous application than the so-called less restrictive alternative test.

Finally, to reunite the two perspectives of investigation I emphasize an element that should act as a point of contact between the paradigm of sustainability and the paradigm of competition in public procurement: the specific interest of the contract as a corollary of the principle of legality, which could be joined, in perspective, by the concept of public value.