‘Optional’ Exclusion from Public Tenders Grounded on Conflicts of Interests and Principle of Proportionality: Whose Choice?

Abstract

Focusing on the current regulation of conflicts of interest in public procurement by Directive 2014/24/EU we try to answer two main questions: (1) what is the core content of its regulation and which implications does it have in daily public procurement activity; and (2) whether this core content and the way it is materialized in Directive 2014/24/EU leaves any leeway to Member States law to modify or create new conflict of interests provisions. The first part of the article is devoted to the analysis of the ‘conflict of interest’ concept under the procurement Directive, concluding that it rests on three fundamental pillars: (a) a broad and functional subjective application based on the objective nature of the phenomenon; (b) a transfer of power (and responsibility) to the contracting entities; and (c) the strong relevance of the principle of proportionality. This new concept of conflict of interest at EU level and the recent CJEU case law in the field suggest a reduction of Member States’ deference in the transposition of optional exclusion grounds. In the present article, the case of Spain is used as an example to illustrate how the interpretative implications of the current EU framework do not leave virtually any margin to Member States to adapt the conflict of interests provisions to national legal traditions. public procurement law, administrative law, EU law, public law, conflicts of interests, causes of exclusion, integrity, anti-corruption