Subsidiarity Lost Along the Way? EU Public Procurement Legislation on the Road to Sustainability

Sustainability goals generally and the Green Deal objectives more specifically have been increasingly accepted and indeed viewed as urgent challenges for the European Union (EU) and its Member States. In the EU’s constitutional fabric, however, this in itself provides no full justification for EU legislation. The subsidiarity principle requires consideration whether the objectives of the proposed action “cannot be sufficiently achieved by the Member States” and whether these objectives may be “better achieved at the Union level”.
EU public procurement law, with Directive 2014/24EU as its core legislative act, in general has a strong ‘subsidiarity salience’. Is the same true for the various Green Deal legislative initiatives that will also regulate public procurement in the future? First, the subsidiarity principle and its interpretation in the post-Lisbon era are discussed. Subsequently, the role of this principle in public procurement legislation, most notably directive 2014/24/EU, are assessed, followed by an analysis of a number of Green deal initiatives. Despite the existence of substantive reasons for subsidiarity concerns, these have hardly surfaced in the the legislative decision-making processes (including the role of national parliaments in the Early Warning Mechanism (EWM)).