Abstrakt

The principle of proportionality is a general principle of EU law, having been introduced into public procurement law under Article 18.1 of Directive 2014/24/EU,¹ Article 36 of Directive 2014/25/EU² and Article 3 of Directive 2014/23/EU.³ Despite the fact that Article 4 of Directive 2009/81/EC⁴ does not explicitly mention the principle of proportionality, there is no doubt that, as a general rule, it also applies to contracts awarded in the defence and security sector. In accordance with the regulations mentioned above, contracting authorities have to treat economic operators equally and without discrimination and must act in a transparent and proportionate manner. The principle of proportionality was transposed into Polish law and endorsed in the current Public Procurement Law,⁵ being regulated by its Article 16 that obliges contracting authorities to prepare and conduct procurement proceedings in the following manner: ensuring fair competition and equal treatment of economic operators, transparent and proportional. The principle of proportionality applies at every stage of the tender procedure, in addition, the European and Polish legislators have implemented specific solutions enhancing the effectiveness of the analysed principle. The principle of proportionality means taking actions that are necessary to achieve the desired goal. In the area of public procurement, the principle of proportionality organises the relationship between certain public needs achieved through a public contract and the obligations of contracting authorities resulting from the principles of fair competition and equal treatment. The contracting authority sets out the terms of participation in the tender and the scope of the public contract in view of the public tasks entrusted to it. However, the contracting authority may not establish conditions that go beyond what is necessary for the proper performance of a given public task. The opening of national public procurement markets based on the principles of equal treatment and fair competition favours contractors from the European Union who can offer their goods and services on the common market. The principle of proportionality ensures a balance between the needs of the contracting authority and the rights of economic operators.
The concept of proportional measures in public procurement has long been present in the jurisprudence of the Court of Justice, especially in the area of establishing and applying selection and awarding criteria. In the presented scope, the Court of Justice noticed the principle of proportionality as excluding domestic regulations of an automatic nature and going beyond what is necessary to achieve the assumed objective. The principle of proportionality requires not a test of comparing two conflicting interests, but a two-step assessment of the implemented measure (instrument, regulation, action):

1) Is the measure taken appropriate to achieve the assumed goal?2) If the given measure is appropriate and fit for the intended purpose, does it go beyond what is necessary, and is it therefore excessive, would other measures be sufficient to achieve the planned effect? Can the assumed goal be achieved by other, less harmful or less intrusive means?