Avvägningen mellan nationell säkerhet och upphandlingsprinciperna - En undersökning av möjligheten att utesluta leverantörer i upphandling inom försörjningssektorerna, med hänsyn till nationell säkerhet.

Sammanfattning: Entities operation in sectors related to water, energy, transport and postal services and some forms of natural resource extraction need to go through a procurement-process when they need to procure services, wares, and construction contracts. In Swedish law this procurement-process is regulated by LUF. Private as well as government entities are both required to abide by LUF, even if the rules somewhat differ between them. The purpose for this paper is to examine the possibilities for procuring entities to exclude certain actors from the procurement-process because of concerns for national security. Entities operation in above mentioned sectors can be classified as being of importance to Swedish security interests, because of the important infrastructure they provide. It is therefor of interest to examine how they are protected by the Swedish procurement-process. In LUF: s 14th chapter its stated that procuring entities are allowed to base their grounds for exclusion as they see fit, as long as the grounds are objective and reasonable. The ground for exclusion is also not allowed to break any of the principles that procurement is built upon. The principles most relevant for this paper are the principle of equal treatment of actors, the principle of non-discrimination and the principle of proportionality. There is not much room for exceptions from these principles even if member states to the European union have some room for discretion. If a ground for exclusion goes against any of the principles it can still be considered legal if any of the exceptions in article 36 or 52 FEUF are applicable. These exceptions are however only acceptable when necessary and must be used in a proportionate manor. Due to a lack of case law on this subject case: 24231-20, 2378-21, PTS v. Huawei, will be brought up. This is because the court discussed the weight that national security holds when it comes to discriminating against foreign actors. In this case the court finds that it is ok to deny a Huawei a license for 5G-towers in Sweden, due to Huawei´s connections to the Chinese government. This is because China has national legislation that makes it possible for Huawei to become a threat in the future, not because Huawei´s products as of today were harmful to Swedish security interests. The same logic can in my opinion not be applied in the context of procurement, the possible for procuring-entities to exclude all actors from certain countries is a very liberal interpretation of the principles on which procurement is built. However LUF:s 13th chapter 4§ 3p opens up the possibility for procuring-entities to exclude certain actors, when it can be proved that their involvement would jeopardize Swedish security.