The mechanism of advancing from one type oftopoi into the next involves the assessment of whether the arguments given have presented sufficient justificatory power to make the judgment valid, i.e. justifiable both internally and externally. It is suggested in this work that in EU public procurement legislation the deep justification of a model running from linguistic to systemic to teleological is also supported by the normative-critical argument that coherence, consistency and legal certainty as well as the institutional actor thesis (which requires a degree of taking into account the division and sharing of powers of different EU institutions) support it.
As rationality forms a substantial portion of the rational acceptability or validity of a judgment in this work (and the mechanism of sequentialist approach), the issue ofcoherence must once again be addressed in the specific context of systemic arguments. In the Three C’s in Legal Reasoning by
531 Beck. 2012. 53, 114.
532 Hage. 2005. 406.
MacCormick and as formed by Siltala the “pursuit of principled, analogy-aligned coherence” is connected to the use of legal principles.533 In theglobal accountof coherence byMacCormick orDworkin, the coherence connected the values hovering over the law all the way to the most minute provisions in that law. In terms ofnormative coherence,this work takes its approach from Raz, who argued that the global notion of coherence allows for a deviation from the law.534 In addition, and specific to the issue of systemic arguments where coherence and the use of principles have been held to possess weight, the global account of coherence would not seem to support the logic ofsedes materiae, i.e., the use of the nearest wider context. This is also supported by the model of analogy by Sunstein. On the other hand, a too restrictive approach to normative coherence would block the rational and justifiable use of systemic arguments in particular. Here, the logic ofsedes materiaecould be held to possess the same logic that in the sequentialist approach to reasoning:
if the argument from the nearest wider context provides sufficient justificatory power andforms a coherent whole within that perspective, it is not necessary to proceed to the next wider context.
The issue of coherence is also connected to the issue of legal reasoningin context.Paunio has suggested that the internal coherence of a given judgment cannot be fully separated from the external coherence. According toPaunio, judicial decisions are read in context as the Court’s audience situates its judgments in the context of the EU legal system.535 This is also connected to the concept oflegal certainty. According toAarnio, legal certainty possesses both formal and material characteristics: predictability and acceptability.536 Paunio has suggested that legal certainty is a compromise between predictability of legal decisions and their acceptability in individual cases.537 It is suggested here that formal legal certainty (i.e. predictability) of EU public procurement legislation is hampered with the excessive use of teleological or consequentialist arguments.Paunio has argued that this kind of formal legal certainty is a “necessary fiction” in multilingual EU law, and consequently remains relative. What Paunio has suggested, instead, is substantive and circular legal certainty, where judicial decisions of the ECJ are accepted by EU legal community as both rationally and substantively acceptable. She argues that this discourse helps to stabilize expectations about EU law. To function, the model requires, however, that underlying values and policies guiding judicial decision-making are expressed in reasoning.538 If these values and policies or objectives have already been deliberated and expressed by the EU legislator, one can ask, however, if the acceptability of a judicial decision (from
533 Siltala. 2011. 112.
534 Raz. 1994. 301.
535 Paunio. 2013. 85-86.
536 Aarnio. 1987. 44.
537 Paunio. 2013. 52.
538 Ibid. 194-195.
the viewpoint of EU legal community) requires the expression of these objectives in each individual case, especially if these expressions of objectives may have the effect of potentially leading to propositions in conflict with the provisions imposed by the legislator or at least expanding the applicability of these provisions to unforeseen instances. The acceptability of decisions should not only entail consensus between the judiciary and the legal community at the general levels of values and objectives, but also at the level of provisions, concepts and principles.
Sankari has argued that studying the case law of the European Court of Justice in context means taking into consideration several aspects relevant for understanding how a body of case law has come about, developed, and what it means, to be able to evaluate how the Court of Justice has acted.Sankari has referred to Maduro and Loïc Azoulai who have suggested that a rule only makes sense in its context, meaning the context of the legal system to which it belongs but also to the economic, social and political context.539 This type of approach seems to lean more to the side of adescriptive approach to the legal reasoning of the ECJ. It is suggested that the sequentialist approach to legal reasoning can be applied universally, in all kinds of fields of law and contexts, but that in some contexts the linguistic and/or systemic arguments do not provide sufficient justificatory power to make the judgment valid. Therefore, the context-dependency seems to exist more at the level ofthe justifiabilityof a judicial decision than at the level of the levels of reasoning themselves. In some cases or fields of EU law, the premises or the structure of the law is such that internal or external justification is not achieved with as little interpretative effort as in other cases.
In terms of coherencewithina decision and coming back to the theory of Moral Soriano on coherence in legal reasoning, supportive structures and cumulation-netting of reasons, the different properties of cumulation chains can be applied beneficially in systemic interpretation. As mentioned above, a particular property of cumulation-chains was the number of supportive relations between reasons. The more connected the reasons are, the stronger the supportive structure is in legal reasoning. It is the view of this study that the number of supportive relations between reasons in a judicial decision is usually higher the closer the rules, principles, policies or concepts used in these reasons are to each other. For example, the concept of a “public contract”
derived from the text of EU Public Procurement Directive in a case by the ECJ possesses usually more supportive relations between the reasons which utilize this concept than the concept of a “public contract” within the meaning of national legislation or other fields of EU law. In addition, arguments (from provisions of law or precedents) stemming from the Treaty provisions on internal market law (to which the EU public procurement legislation is considered to be primarily connected here), usually possess more connections to reasons from the text of the EU Public Procurement Directive than
539 Sankari. 2013. 22. Maduro – Azoulai. 2010. xiv-xv.
arguments from EU Competition Law. The steps of reasoning by analogy reach EU competition law before environmental or employment law, as they are more closely connected through their parallel purposes.
Through the next chapters a number of ECJ cases concerning the scope of application of public procurement rules are analysed in terms of their reasoning and their use of arguments. A particular focus will be on the question of whether they reflect a sequentialist approach or whether there can be found a particularly heavy emphasis on a certain type of argument which bypasses the sequentialist order. A special focus will be given to the use of systemic arguments, or the lack thereof, and the effects of this on the coherence, consistency and legal certainty of EU public procurement legislation. Where systemic arguments can be found to possess benefits (in accordance with the sequentialist approach) not utilised in those cases, a critical normative evaluation is directed to the judgments.
9 CASE LAW ON THE SCOPE OF APPLICATION IN PUBLIC
PROCUREMENT LAW
9.1 OUTLINING RELEVANT CASES
The case law of the European Court of Justice concerning the scope of application of public procurement law is quite vast. It is not possible or even fruitful to go through every single one of the rulings of the Court in this work.
The relevant cases have been chosen because,first, based onstring citations andsubstantive citations, the rulings presented in Part II have been frequently referred to in the Court’s own case law.Second,the aim has been to choose those judgments which have been influential in the evolution building up to specific provisions in the public procurement directives. Third, cases which have represented a considerable change of direction compared to previous case law have been emphasized.
The analysis in Part II is based on evaluating the reasoning in the chosen cases from the viewpoint of sequentialist approach to legal reasoning and, when necessary, pointing out alternative lines of reasoning which would have been, arguably, better suited to the sequentialist approach and the promotion of coherence and legal certainty. The reactions of legal scholars are also taken into account, where they provide additional insight into the reasoning or its shortages. Some cases, which have been considered more important, based on the reasoning depicted above, are examined in more detail than others.
Cases concerningspecific exclusion groundsin the procurement directives (such as the acquisition of land or existing buildings or financial services) are not covered, as the case law is quite minimal on these issues and the case law has not much changed the provisions in the directives. For these reasons, cases concerning the relationship between classical sector procurement directive and utilities sector procurement directive are not covered either.
As a general observation, it must be stated that in nearly all the cases depicted below, the Court of Justice has utilised arguments from its precedents (either as string citations or as substantive citations). This naturally emphasizes the fact that the ECJ does take into account, to a degree, the coherence of its case law. As these references have been very common in the cases, they are not, as a rule, brought expressly into the assessment in the Chapters below, unless there has been an apparent departure from existing case law or other special circumstances in the use of such arguments from precedents.