Can Affirmative Action be Allowed in EU Procurement Law? - SMEs to be Positively Discriminated?

Dorthe Kristensen Balshøj*

*Corresponding author for this work

Research output: Contribution to journalJournal articleResearchpeer-review


Affirmative action is a widely acknowledged phenomenon in the US, and in the context of small businesses (US counterpart to European SmEs) within public procurement it is manifested in a 23% set-aside. the purpose of affirmative action in the US is equal treatment - as is the overall purpose of EU law. However, in EU law affirmative action and equal treatment are considered somewhat opposites, for which reason there is no set-asides as such. that said, Article 67(2) of directive 2014/24/EU provides for including social aspects in the contract award criteria, and therefore the main question of this article is whether it would be against the principle of equal treatment to use Article 67 as a basis for introducing affirmative action to promote SMEs in European public procurement? In this author's opinion, the answer is no.

Original languageEnglish
JournalEuropean Business Law Review
Issue number5
Pages (from-to)965-978
Number of pages14
Publication statusPublished - 2021

Bibliographical note

Funding Information:
This project was funded by the Independent Research Fund Denmark, 9150-00003B.

Publisher Copyright:
© 2021 Kluwer Law International BV, the Netherlands. All Rights Reserved.


  • affirmative action
  • Article 47
  • EU public procurement
  • incomparable positions
  • principle of equal treatment
  • small and medium-sized enterprises
  • small businesses
  • SmE
  • sustainable procurement
  • US government purchasing


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