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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


        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,
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

EPPPL  3|2016

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