Table Of ContentUnleashing Social Justice through EU
Public Procurement
The dramatic results of the 2014 European Parliament elections have highlighted
the European Union’s urgent need for a review of the scope and purpose of its
social objectives and for a reordering of European priorities.
This book advocates a radical and original alternative to the current philo-
sophy that determines the set of rules for the awarding of EU public procurement
contracts. It calls for a reordering of the EU’s economic and social priorities. In
doing so, it advocates for a social dimension to be placed at the core of public
procurement, which could elicit a social model of integration in the EU in which
the European citizen is the key actor. This is achieved through an analytical
approach as well as concise and contextualised explanations relating to free trade
theories, poverty and public interest theories.
This book will be of key interest to students and scholars of the European
Union, political theory and EU law.
Antoinette Calleja is Director, International Affairs and Policy Development
with the Ministry for Health, Malta.
Critical European Studies
Edited by Hartmut Behr
University of Newcastle, UK
and Yannis A. Stivachtis
Virginia Tech, USA
1 Mapping European Empire
Tabulae Imperii Europaei
Russell Foster
2 Revisiting the European Union as an Empire
Edited by Hartmut Behr and Yannis A. Stivachtis
3 Unleashing Social Justice through EU Public Procurement
Antoinette Calleja
Unleashing Social Justice
through EU Public
Procurement
Antoinette Calleja
First published 2016
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2016 Antoinette Calleja
The right of Antoinette Calleja to be identified as author of this work has
been asserted by her in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Calleja, Antoinette.
Unleashing social justice through EU public procurement / Antoinette
Calleja.
pages cm. – (Critical European studies ; 3)
1. Government purchasing–European Union countries. 2. Public
contracts–European Union countries. 3. Social justice–European Union
countries. 4. Public-private sector cooperation–European Union
countries. 5. European Union countries–Social policy. I. Title. II. Title:
Unleashing social justice through European Union public procurement.
JN30.C347 2015
352.5'32114–dc23 2015014738
ISBN: 978-1-138-93089-6 (hbk)
ISBN: 978-1-315-68009-5 (ebk)
Typeset in Times New Roman
by Wearset Ltd, Boldon, Tyne and Wear
Contents
List of illustrations viii
Preface ix
Acknowledgements xiii
List of abbreviations xiv
PART I
The status quo 1
1 Introduction 3
1.1 Background 3
1.2 Theoretical perspectives on social formation – a general
idea 11
1.3 On theories of social justice 14
1.4 On Europe’s social model 21
1.5 Social Europe on the move 23
1.6 On the power of social protection expenditure 25
1.7 The case for a reordered public procurement regime 28
1.8 Concluding remarks 30
2 European integration and the interplay with public
procurement 41
2.1 Introduction 41
2.2 The relationship between the EU’s social and economic
dimensions 43
2.3 The beginnings of the development of EU public procurement
regulation and its role in European integration – an
overview 50
2.4 Advancing a socially just model of European integration
through public procurement 54
2.5 Concluding remarks 56
vi Contents
3 The effectiveness of EU public procurement 64
3.1 Introduction 64
3.2 EU public procurement and its impact on transparency 66
3.3 EU public procurement and its impact on cross border
procurement 72
3.4 EU public procurement and its impact on small- and medium-
sized enterprises 75
3.5 EU public procurement and its impact on the international
public procurement market 76
3.6 Concluding remarks 77
4 Free trade: what about it – myths or realities? 82
4.1 Introduction 82
4.2 On framing economic theories 85
4.3 The theory of comparative advantage – a general idea 86
4.4 Moving beyond theory – free trade and the Europe 2020
strategy 91
4.5 The liberalisation of the network industries as an illustration
of the EU’s overriding and unconditional attitude towards
the Single Market project 93
4.6 Concluding remarks 98
5 Poverty and natural law theory in context 105
5.1 Introduction 105
5.2 Poverty across the EU – a snapshot 106
5.3 The nature of poverty – definitions abound 111
5.4 Freedom for human flourishing as conceived through natural
law theory 115
5.5 Respect for human dignity – a legally enforceable fundamental
right 120
5.6 The quest for poverty reduction – putting EU public
procurement into perspective 121
5.7 Concluding remarks 124
PART II
Closing the gap 133
6 The mission of serving the public: services of general
interest and community law 135
6.1 Introduction 135
6.2 The European Commission and its plethora of soft law 136
Contents vii
6.3 Services of general economic interest – forging a bond
between European economic efficiency and social
cohesion? 137
6.4 Services of general interest – an endeavour in untangling
chaos in the free-t hinking zone 142
6.5 Concluding remarks 158
7 Public procurement as the EU’s safety valve 171
7.1 Introduction 171
7.2 The EU as a decentred State 172
7.3 Marchés publiques as sui generis markets 176
7.4 To what extent is the EU public procurement regime serving
the public interest? 178
7.5 Concluding remarks 184
PART III
The solution 191
8 On public- private partnerships: a European theory of a
socially just alternative 193
8.1 Introduction 193
8.2 On public- private partnerships 194
8.3 UK, London: Thameslink rolling stock procurement
programme – the case in a nutshell 195
8.4 Arguing for a European theory of social justice 203
8.5 Concluding remarks 210
9 Conclusions 215
9.1 The validity of our actions needs to be limited by time and
concrete results 216
9.2 On a plane of practical reasonableness 218
Index 228
Illustrations
Figure
7.1 Conceptual forces underpinning the EU legal order: a binary
distinction on the conduct of the State 174
Tables
1.1 Youth unemployment rate – annual average percentage 26
2.1 A general concept of social integration 58
5.1 At risk of poverty or social exclusion, 2012 108
5.2 Relative median at-r isk-of- poverty gap, evolution in
percentage points, 2012–13 and 2008–13 110
5.3 Summary description of the basic requirements of practical
reasonableness, as postulated by Finnis 118
5.4 Summary description of the seven basic goods, as postulated
by Finnis 120
Preface
Unleashing Social Justice through EU Public Procurement responds to the
European Union’s urgent need for a review of the scope and purpose of its social
objectives. It seeks to foster novel and critical thinking that challenges the
current predominant mindset linked to the EU public procurement regime, and
provokes for the very first time a shift in its paradigm. It advocates a radical and
original alternative to the current EU philosophy that drives the rule set concern-
ing the awarding of public procurement contracts that fall within its legal juris-
diction. This alternative is for the EU public procurement regime to have a social
dimension standing at its core, one that extends into a social model of European
integration in which the European citizen becomes the key actor in the integra-
tion process. It is argued that the intertwined social threads constitute the very
fabric of Europe’s economic dimension, and that Europe’s building capacity is
located within this space – potentially weaving the way towards European
integration.
Public procurement expenditure across the EU is estimated at 19 per cent of
EU GDP. Its regulation plays a vital role in the integration programme of the
single European market. Preferential public procurement is considered as State
aid and this is generally prohibited by the Treaty unless it can be justified for
reasons of general economic development. In essence, governments are not
allowed to support individual companies gain competitive advantages since this
would distort trade between Member States. Such market intervention and insti-
tutionalised controls are commensurate with neoliberal principles which do not
reflect upon the distributive objectives of societal welfare.
However, this book presents a fundamental departure from such logic for it
argues on the basis of a socially just alternative that takes into account the dis-
tributive objectives of societal welfare – albeit in a limited manner as far as
public procurement contracts are concerned. Through a journey of ‘verstehen’1
this book culminates by advancing a European theory of social justice. Such a
theory finds philosophical underpinnings that are grounded on natural law
theory, and is institutionalised through the public-p rivate partnership regime by
putting into operation principles derived from John Rawls’ in Justice as Fair-
ness. This social model is in alignment with the European Union’s founding
values, and it operates on the basis of principles and conditions that enable the
