Animal Welfare, Public Procurement and the EU Internal Market - A Recurrent Dilemma in Swedish Policy Making?

Sammanfattning: On the basis of an article recently authored by the Swedish Minister for Public Administration, the main purpose of this thesis is to examine whether contracting authorities are allowed to refer to ‘Swedish’ standards of animal welfare (whether explicitly or not) when purchasing foodstuffs, without infringing the EU rules on free movement. In making this assessment, the thesis identifies three recent developments that could be expected to have an impact on the discretion of contracting authorities. First, EU secondary animal welfare legislation has become increasingly harmonised over the years. This could possibly point towards a lower margin of discretion. Second, the Lisbon Treaty introduced an article on animal welfare in Article 13 TFEU. This could instead point towards a wider margin of discretion. Third, the Union recently adopted a package of new Public Procurement Directives. This, too, could point towards a wider margin of discretion. By way of introduction, the thesis points out that express references to ‘Swedish’ standards of animal welfare would not be in compliance with EU law. Such references would be contrary to the free movement provisions and the general principles of EU law (especially the principle of non-discrimination) and go against Article 42(4) of the new Public Sector Directive, which provides that Member States shall not refer to a “specific origin” when drafting the technical specifications. This conclusion gains support from the decisions in Skåne and Halland, where the Swedish courts found that references to the Swedish Animal Welfare Act were not allowed. When it comes to less discriminatory requirements, the thesis argues that one has to make a distinction between different areas of animal welfare. As far as certain species of animals are concerned (calves, pigs, hens and so on), these are all governed by minimum harmonising directives containing a free movement clause. Based on the Court’s decision in CIWF, this means that Member States are allowed to impose more demanding national measures against their own producers, but not so as to impede the free movement of goods. As far as other types of requirements are concerned (transport, slaughter and antibiotics), these are instead governed by regulations. Generally speaking, this means that Member States are not allowed to impose any stricter requirements than those laid down in the regulation itself. All in all, this suggests that the scope for more demanding measures in the field of animal welfare remains very small. Based on the judgements in Medipac and Commission v Greece, the thesis argues that the same kind of reasoning should apply to contracting authorities as well. Finally, the thesis considers that neither the introduction of Article 13 TFEU, nor the adoption of the new Procurement Directives could be expected to ‘trump’ the greater harmonisation of EU secondary animal welfare legislation. This means that the impact of these changes on public purchasers’ discretion will remain rather limited as things stand today