Introduction

Chapter 1 introduced the phenomenon of horizontal policies in procurement and highlighted relevant principles of EC law, in particular, the equal status of horizontal policies with other procurement policies; equal treatment and integration of environmental considerations into EC policies; proportionality and subsidiarity; and the limited relevance of the directives in interpreting the EC Treaty. Chapter 2 provided an overview of the EC procurement regime, whilst chapter 3 set out a taxonomy of policies. The present chapter will now provide a critical review of EC regulation of horizontal policies, drawing on the framework of previous chapters. As well as offering a critical review of the regime, this chapter also provides background for the analysis in later chapters. Conversely, it draws on those chapters to provide a more complete picture of the regime.

This chapter first considers the application of the EC Treaty's free movement rules to horizontal policies (sections 2–4). (As mentioned in chapter 1, the state aid rules are examined separately in chapter 5.) It then examines how national discretion to implement horizontal policies is affected by Public Sector Directive 2004/18/EC, which has a significant impact in this field (sections 5–14). It also notes the extent to which the directive has sought to harness Member States' procurement power in support of the Community's own policy objectives (section 15). Special considerations applicable to Utilities Directive 2004/17/EC, which has been much less explored in previous work, are examined by Arrowsmith and Maund in chapter 11.