Legislative history[edit]Primary legislation[edit]The basis of European procurement regulation are the provisions of the Treaties of the European Union that prohibit barriers to intra-Union trade, provide the freedom to provide services and the right to establishment (three of the "Four Freedoms"), prohibit discrimination on the basis of national origin and regulate public undertakings and public monopolies.[3] But these rules, being prohibitive in character, proved insufficient to eliminate the protection afforded by Member States to domestic enterprises by preferential procurement practices.[3] For this, positive regulation through secondary legislation which harmonized the procurement laws of Member States appeared to be needed.[4]First generation of secondary legislation: Supply and Works Directives[edit]The European Communities (EC) Council of Ministers adopted General Programmes in 1962 that envisaged the abolition of national quotas and restrictions in public procurement.[5] Directive 66/683 prohibited rules requiring the use of national products or prohibiting the use of foreign products in public procurement, and Directive 70/32 applied the same rule to public supply contracts.[6]The procedures for awarding public supply contracts were co-ordinated with Directive 77/62, which introduced three fundamental principles: contracts had to be advertised community-wide, discriminatory technical specifications were prohibited and tendering and award procedures had to be based on objective criteria. However, it did not apply to public utilities, or to products originating outside the EC until its amendment by Directive 80/767 following Community approval of the 1979 General Agreement on Tariffs and Trade (GATT) Agreement on Government Procurement.[7]Similar principles of transparency and non-discrimination were applied to the awarding of public works contracts with Directive 71/305, which however did not replace national tendering procedures and practices with a set of common rules.[8]
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