In Search of Coherence Between the Recast EED and EU Public Procurement: Technical Constraints and the Recalibration of Legal Principles

This article examines how the recast Energy Efficiency Directive (EED) interacts with Directive 2014/24 through two obligations it introduces into public procurement: a new obligation on what to buy, which compels contracting authorities to purchase only top-class energy-efficient products, and the Energy Efficiency First (EE1st) principle, which requires a cost-effective assessment of energy choices. Although both pursue energy efficiency, they rest on different conceptions of it: the first on a strictly technical notion applied irrespective of cost, the second on a cost-effective assessment spanning the entire life cycle. The article makes two principal claims. First, by removing the traditional grounds for derogation and retaining only the narrow exception of technical infeasibility, the recast EED shifts the balancing between sustainability and competition from the contracting authority to the EU legislature; the resulting restriction of competition is the intended consequence of legislative design rather than an unlawful narrowing. Because that exception is so narrow, it is argued that contracting authorities are instead subject to a duty of due diligence: to investigate the more energy-efficient options available and, where appropriate, to prefer and procure them. Second, the MSR and EE1st operate on distinct axes that cannot be reduced to one another, a divergence that remains under-theorised and only partially clarified by inconsistent Commission guidance. The article thus maps and partially resolves a tension in EU procurement law and identifies the interpretive choices that its resolution requires.