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11 Eur. Procurement & Pub. Private Partnership L. Rev. 194 (2016)
The Application of the Principle of Proportionality to Modifications of Public Contracts

handle is hein.journals/epppl2016 and id is 231 raw text is: 194 | The Application of the Principle of Proportionality to Modifications of Public Contracts The Application of the Principle of Proportionality to Modifications of Public Contracts Piotr Bogdanowicz* The rules regarding modifications of public contracts were added to EU public procurement law in 2014 in order to clarify the conditions set forth by the relevant case law of the Court of Justice of the European Union. However, the provisions that were ultimately adopted are not quite black and white as one might think. One of the grey areas might be the applica- tion of the principle of proportionality to modifications of public contracts. New directives mention proportionality as a principle of procurement. This article presents a view that contracting authorities shall act in a proportionate manner also after the procurement de- cision has been made, i.e. when a contract has already been awarded. 1. Introduction Proportionality, first explained by Aristotle, is now a world-wide principle of law found in common law, civil law and international law (including EU law).1 In principle, it requires that the action undertaken be nec- essary, appropriate (adequate) and proportionate sen- su stricto.2 Some authors believe that it is the most im- portant general principle of EU economic law because in the absence of a detailed system of EU administra- tive law it judges measures by the relationship be- tween the objective pursued and the methods used.' Indeed, it constitutes a key element in the justification of restrictions of freedoms of the internal market, of Piotr Bogdanowicz, Ph. D., is an assistant professor (adiunkt) at the Faculty of Law and Administration, Warsaw University. DOL: 10.21552/epppl/2016/3/8 1 E Engle, 'The General Principle of Proportionality and Aristotle' in L Huppes-Cluysenaer, NMMS Coelho, Aristotle and The Phi- losophy of Law: Theory, Practice and Justice, Dordrecht 2013, 266. 2 However, as far as EU law is concerned, such three-step conven- tional test is rarely used by the Court of Justice of the European Union (Court) and the European Commission (Commission). Both institutions usually refer to necessity and appropriateness. See T van Danwitz, 'Thoughts on Proportionality and Coherence in the Jurisprudence of the Court of Justice' in P Cardonnel, A Rosas and N Wahl, Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh, Oxford 2012, 372-373. The author rightly points out that the case-law of the Court is 'quite irritating in this respect, at least as it goes with judgments in which mea- sures of secondary legislation are subject to review under the principle of proportionality. Anticipating further considerations the same applies to EU public procurement law. For instance, in cases concerning exclusion grounds the Court often stops at which public procurement is undoubtedly a part. Thus, the proportionality principle is also considered one of the core principles of EU public procurement law.4 The Commission points out that contracting au- thorities from Member States have to comply with the proportionality whenever they conclude public contracts falling within the scope of that Treaty.5 It is also submitted that the principle of propor tionality is the translation in legal parlance of the cost-benefit analysis and thus may be called the principle of economic efficiency in EU law.6 In the context of public procurement it is particularly noteworthy as in their recitals the new public pro- curement directives7 (New Directives) introduce, reviewing 'necessity only. See the judgments described in Sec- tion 11 below. 3 W Sauter, 'Proportionality in EU law: a balancing act', (2013) 15 Cambridge Yearbook of European Legal Studies, 439-440 and authors cited thereby. 4 JM Hebdy and J Meesters, 'The Proportionality Principle in the Dutch Public Procurement Act', (2014) 4 European Procurement & Public-Private Partnership Law Review, 266. 5 See Interpretative Communication on the Community law applic- able to contract awards not or not fully subject to the provisions of the public procurement directives. OJ 2006 C 179/2. 6 A Portuese, 'The Case for a Principled Approach to Law and Economics: Efficiency Analysis and General Principles of EU Law' in K. Mathis (ed.), Law and Economics in Europe: Foundations and Applications, Dordrecht 2014, 297. 7 See Directive 2014/24/EC on public procurement (OJ 2014 L 94/65) (Directive 2014/24/EU) and Directive 2014/25/EC on procurement by entities operating in the water, energy, transport and postal services sectors (OJ 2014 L 94/243) (Directive 2014/25/EU). EPPPL 3|2016

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