One may suppose that there may be several differences that can be mentioned but what would make this easier if on could mention the similarities. This can also be done from various spectrums but due to the word limit of this essay we can take a look at procurement, state aid or subsidies and environmental considerations. Binding together all legal orders or rule of law are basic principles which I will start by mentioning first.
Global level Principles
The MFN and the NT principles. These seek to create a level playing field non-discrimination for actions of the state vis a vis foreign goods or services. National treatment (NT) means Treating foreigners and locals equally. Imported and locally-produced goods should be treated equally after the foreign goods have entered the market. These founding principles can be found in all the three main WTO agreements (Article 3 of GATT, Article 17 of GATS and Article 3 of TRIPS). The MFN principle lays out that countries may not discriminate between their trading partners, for example by granting someone a special favour (such as a lower customs duty rate for one of their products) and then the same would apply for all other WTO members GATS (article 2) and TRIPS (Article These are designed to to secure fair conditions of trade.
EU law Principles
One goal of the internal market is that competition within the internal market shall not be distorted. If competition is distorted then this may lead to higher prices for consumers, less innovation and bad quality of goods and services. [5] As known, the internal market comprises of free movement of goods, services, persons and capital and these should not be restricted. Following any competition law, public procurement, state aid law measures, these should all be based on the general principles of EU Law. Some of these are; Principle of proportionality – Requirements must have a natural relation to the supplies, services or works which are being procured. Principle of mutual recognition – Documents issued in one Member State must be accepted in another Member State. Principle of equal treatment – All suppliers must be treated equally. Principle of non-discrimination which prohibits all discrimination based on nationality and lastly, principle of openness consisting of predictability and transparency. Private measures which distort competition apply to undertakings as stipulated within article 101 TFEU and 102 TFEU. “The purpose of coordinating the procedures for the award of public contracts at the EU level is precisely to eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established in a Member State who wish to offer goods or services to contracting authorities established in another Member State.”[6] The founding principles of the EU internal market codified in the TFEU and in the procurement directives speak for themselves that an equal opportunity to win the contract should be given to all bidders, with slight exceptions outlined in the Concordia case.[7] Some of these principles are proportionality or the requirements must have a natural relation to the supplies, services or works which are being procured. Also principle of mutual recognition states that documents issued in one Member State must be accepted in another Member State. Principle of equal treatment signifies that all suppliers must be treated equally. Principle of non-discrimination which prohibits all discrimination based on nationality and lastly the principle of openness highlighting predictability and transparency.
Procurement Law Global or WTO Level
From a Global Procurement perspective these principles are the general principle of the GATT which was created as a result of WTO order stipulates Many other agreements do however, aim to support fair competition: in agriculture, intellectual property rights, services, to name a few. The agreement on government procurement (a “plurilateral” agreement since it is signed by only 21 out of 48 MS of WTO members who are party to it) encompasses competition rules to purchases by thousands of government bodies in many countries. The aim of the GPA is to mutually open government procurement markets among its signatories. Negotiations can also be seen as setting a level playing field as it decisions are taken unanimously between the parties. “As a result of several rounds of negotiations, the GPA parties have opened procurement activities estimated to be worth more than US$ 1.7 trillion annually to international competition (i.e. to suppliers from the GPA parties offering goods, services or construction services).”[8]
Article IV:1 of GPA set outs as a core rule the requirement of – Non-Discrimination 1. With respect to any measure regarding covered procurement, each Party, including its procuring entities, shall accord immediately and unconditionally to the goods and services of any other Party and to the suppliers of any other Party offering the goods or services of any Party, treatment no less favourable than the treatment the Party, including its procuring entities, accords to: a. domestic goods, services and suppliers; and b. goods, services and suppliers of any other Party.
Procurement Law EU Level
Outside the scope of a public procurement directive, “Public entities are, none the less, bound to comply with the fundamental rules of the Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular, […] that principle implying, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that the principle has been complied with”[9]
The preamble to the directive 2014/24/ EU specifies that ‘A contracting authority ‘has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. …’ The directive is also based on case-law[10]
State Aid vs Subsidy EU Law and Globally, respectively.
Thirdly, a level playing field can be established through Global state aid control encapsulating the ban on subsidies that alter the flow of goods that otherwise would take place and subsidies that cause distortions in the relative shares of world export trade. How does subsidy policy and state aid go hand in hand? Through the Promotion of innovation, promotion of environmentally friendly production methods, stimulation of employment of labour, promotion regional development , supporting an inefficient business model and bringing them on the same level playing field as other efficient business models. The law regulating subsidies on a WTO level are states
“Subsidy (WTO) Article 1 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement): a subsidy shall be deemed to exist if there is a financial contribution by a government or any public body within the territory of a Member or any form of income or price support in the sense of Article XVI of GATT 1994, which confers a benefit.”
Under EU Law, State measures distorting competition are public monopolies, public undertakings, state aid and public procurement, which are more or less regulated within the Treaty provisions, regulations or directives. “State aid may above all not be used to set up barriers impeding access to the market.”
The European Union Concept of public service through State Aid rules or payment through public funds to provide services of general economic interest is contained within three approaches. One is the State Aid approach though 107 to 109 of the TFEU and another is the compensation approach post Altmark and now 106 of TFEU and lastly the regulatory approach stipulated within the commission decision of 28 November 2005 on the application of Article 86(2) Concerning state aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (2005/842/EC).
[1] https://www.oecd.org/trade/topics/levelling-the-playing-field/ [2] https://www.oecd.org/trade/topics/levelling-the-playing-field/ [3] https://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm [4] https://ec.europa.eu/trade/policy/in-focus/ceta/ceta-chapter-by-chapter/ [5] The Commission State Aid Action Plan, COM (2005) 107 final, p. 4. [6] ECJ - Judgments of 3 October 2000, University of Cambridge, C-380/98, EU:C:2000:529, paragraph 16; of 18 October 2001, SIAC Construction, C-19/00, EU:C:2001:553, paragraph 32; and of 24 January 2008, Lianakis and Others, C-532/06, EU:C:2008:40, paragraph 39). [7] C-513/99 Concordia Bus [2002] ECR I-7213 [8] https://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm [9] (C-324/98, Telekom Austria) [10] cases 31/87 Beentjes (respect all relevant provisions of EU law), 45/87, Commission v Ireland [11] M Andhov, “contracting authorities and strategic goals of the public procurement – A relationship defined by discretion?” page 137 [12] https://www.econstor.eu/bitstream/10419/125655/1/WWWforEurope_Policy_Paper_028.pdf [13] See WTO homepage https://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm [14] Case C-41/90 Höfner and Fritz Elser v Macrotron GmbH [1992] ECR I-1979, para 21. [15] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) [16] Case T-41/96, Bayer AG v Commission [17] Case 48/69, Suiker Unie v Commission, para 64 [18] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) 925 [19] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) 925 [20] Commission v. Anic Partecipazioni SpA, (-49/92 , ECLI:EU:C:1999:356 para 112. [21] D Chalmers et al, European Union Law (4th edn, Cambridge University Press 2019) 925 [22] Eturas UAB and Others v. Lietuvos Respublikos konkurencijos taryba, C - 74/14 [23] https://www.concurrences.com/en/dictionary/anticompetitive-objet-or-effect#:~:text=In%20other%20words%2C%20for%20the,of%20competition%20as%20its%20object.&text=Restrictions%20of%20competition%20by%20object,the%20potential%20of%20restricting%20competition. [24] ECJ - Judgments of 3 October 2000, University of Cambridge, C-380/98, EU:C:2000:529, paragraph 16; of 18 October 2001, SIAC Construction, C-19/00, EU:C:2001:553, paragraph 32; and of 24 January 2008, Lianakis and Others, C-532/06, EU:C:2008:40, paragraph 39). [25] C-513/99 Concordia Bus [2002] ECR I-7213 [26] C-513/99 Concordia Bus [2002] ECR I-7213 [27] Case C-368/10 Commission v Netherlands (“Dutch coffee” /Max Havellaar) [28] Case C-368/10 Commission v Netherlands (“Dutch coffee” /Max Havellaar) [29] C-513/99 Concordia Bus [2002] ECR I-7213 [30] Commission v Germany (C-17/09). [31] (C-324/98, Telekom Austria) [32] (C-71/92, Commission v. Spain) [33] C-324/98 Telecom Austria, para 62) [34] https://www.concurrences.com/en/dictionary/anticompetitive-objet-or-effect#:~:text=In%20other%20words%2C%20for%20the,of%20competition%20as%20its%20object.&text=Restrictions%20of%20competition%20by%20object,the%20potential%20of%20restricting%20competition.
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