Public procurement Law as an Expression of the Rule of Law: On How the Legislature and the Courts Create a Layered Dynamic Legal System Based on Legal Principles

Abstract

The enormous amount of money involved in the public procurement market has forced authorities and scientists to concentrate excessively on the efficiency of the public procurement process from an economic perspective, with much less emphasis on the constitutional aspects of public procurement law. In this contribution, I will argue that the emphasisshould move from “economic”effectivenessto“constitutional” effectiveness, aiming at ensuring the democratic rights of individuals and maintaining democracy and the rule of law. Constitutional effectiveness is to be considered a prerogative of good legislation and good enforcement. As legitimacy and coherence are essential for the creation of constitutional effectiveness, I will elaborate on this reasoning by analysing how public procurement law is evolving and expanding towards a more coherent area of law as a consequence of, on the one hand, a top-down EU legislative process and, on the other hand, as triggered—bottom-up—by litigation in the national courts. Potential tensions or conflicts emerging between economic and constitutional effectiveness could be resolved by adapting the concept of economy and the concept of costs related to public procurement. This estimation should include the costs needed for the protection of the democracy and the rule of law.