Can Affirmative Action be Allowed in EU Procurement Law? – SMEs to be Positively Discriminated?

Abstract

Affirmative action is a widely acknowledged phenomenon in the US, and in the context of small businesses (US counterpart to European SMEs) within public procurement it is manifested in a 23% set-aside. The purpose of affirmative action in the US is equal treatment – as is the overall purpose of EU law. However, in EU law affirmative action and equal treatment are considered somewhat opposites, for which reason there is no set-asides as such. That said, Article 67(2) of Directive 2014/24/EU provides for including social aspects in the contract award criteria, and therefore the main question of this article is whether it would be against the principle of equal treatment to use Article 67 as a basis for introducing affirmative action to promote SMEs in European public procurement? In this author’s opinion, the answer is no. EU public procurement, US government purchasing, small and medium-sized enterprises, SME, small businesses, affirmative action, sustainable procurement, principle of equal treatment, incomparable positions, Article 47