The Use of Languages in Public Procurement Procedures – A Hidden Non-Tariff Barrier to Free Movement?

Abstract

In the European Union, the award of public contracts by contracting authorities has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. In principle, all procurement procedures start with a contract notice which is used as a means of calling for competition in respect of all procedures. By informing all economic operators about the possible business opportunities, European public procurement rules seek to promote competition and aim to open up the procurement market to undertakings beyond national borders. This is expected to lead to lower prices and more choice. Contract notices include information on the language(s) in which tenders or requests to participate must be drawn up which entails that economic operators are bound to draw up their tender proposal in the language(s) chosen by the contracting authority. It is not hard to imagine that this may seriously hinder free movement and restrict competition in the internal market. This contribution will focus on the use of languages in public procurement procedures and reflect on whether Directive 2014/24/EU, which finds it legal basis in the Articles 53(1) TFEU on freedom of establishment, 62 TFEU (free provision of services) and 114 TFEU (approximation of provisions relating to the establishment and functioning of the internal market) is not in itself hindering free movement by its regulation on languages.