Assessing Public Administration’s Intention in EU Economic Law: Chasing Ghosts or Dressing Windows?
Posted by Social Science Research Network
Assessing Public Administration’s Intention in EU Economic Law: Chasing Ghosts or Dressing Windows? Albert Sanchez-Graells (University of Leicester)
Abstract: 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.
Featured News
FTC Pushes Review of CoStar’s Commercial Real Estate Antitrust Case
Jan 31, 2024 by
CPI
UK’s CMA Investigates Ardonagh’s Atlanta Group and Markerstudy Merger
Jan 31, 2024 by
CPI
Greenberg Traurig Grow Financial Regulatory and Compliance Practice
Jan 31, 2024 by
CPI
Dutch Regulator Fines Uber €10 Million for Privacy Violations
Jan 31, 2024 by
CPI
DOJ Investigates AI Competition, Eyes Microsoft’s OpenAI Deal: Bloomberg
Jan 31, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – The Rule(s) of Reason
Jan 29, 2024 by
CPI
Evolving the Rule of Reason for Legacy Business Conduct
Jan 29, 2024 by
CPI
The Object Identity
Jan 29, 2024 by
CPI
In Praise of Rules-Based Antitrust
Jan 29, 2024 by
CPI
The Future of State AG Antitrust Enforcement and Federal-State Cooperation
Jan 29, 2024 by
CPI