Introduction

The particular issue that is the focus of this chapter is how governments use their purchasing power to advance conceptions of social justice, particularly equality and non-discrimination. The term ‘linkage’ is used throughout this chapter to describe this use of procurement. This chapter attempts to set out the foundations for a new interpretation of the EC procurement directives, as they apply to the contested ground of what I call ‘procurement linkages’. This chapter is extracted from a more detailed exposition of the legal issues involved, not only in the EC context but also more broadly.

My argument in this chapter is that three aspects of Community law relating to procurement need to be borne in mind when interpreting the procurement directives in the context of procurement linkages: the overall limits of the procurement directives deriving from the Treaty, the importance of ‘equal treatment’ as the basis of both EC states' equality law and procurement law, and the importance of viewing the procurement directives as engaging with a policy instrument that is based on freedom of contract, raising the importance of what is meant by the ‘subject matter of the contract’.

Some preliminary points

Several important developments have occurred that challenged an approach to the interpretation of EC procurement law that sees linkages as simply constraints on a Community policy of open markets adopted at the behest of purely national interests.