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Barriers to small business preference programs under EU Law - A comparative evaluation of EU and U.S. law, size standards, and policy

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Page d'accueil Perspectives Barriers to small business preference programs under EU Law - A comparative evaluation of EU and U.S. law, size standards, and policy
The world is evolving towards a harmonized set of rules across a variety of topics1. One of the many areas where harmonization is occurring is in the field of government acquisition2. One of the many important areas of harmonization within government acquisition relates to how small businesses should be supported by governments in the area of government acquisition.

The United States has a long history of zealously supporting small business. United States’ efforts to support small business originally consisted of relatively simple efforts to facilitate the stability and growth of small businesses for the benefit of the U.S. industrial base.3 U.S. efforts have evolved, however, into what is now a complex collection of small business programs. These small business programs are both facilitative of small business creation, as well as preferential in terms of the award of business.4

  1. See, e.g., United Nations Economic Commission for Europe’s Globally Harmonized System of Classification and Labelling of Chemicals (GHS), www.unece.org (last visited December 12, 2015); Chun, Dongwook, Patent Law Harmonization in the Age of Globalization: The Necessity and Strategy for a Pragmatic Outcome (January 24, 2012). Journal of Patent Trademark Office Society, Vol. 93, No. 2, p. 127, 2011. Available at SSRN: papers.ssrn.com; Caroline Freund and Sarah Oliver, Gains from Harmonizing U.S. and EU Auto Regulations under the Transatlantic Trade and Investment Partnership, PB 15-10, Peterson Institute for International Economics, www.iie.com. In the wake of the terrorist attacks in Paris on 13 November 2015, increased focus on cooperation and harmonized legislation is expected. See, e.g., Louise Shelley, The Globalization of Crime and Terrorism, The Bureau of International Information Programs of the U.S. Department of State, eJournal USA: Global Issues (February 2006), 42-45, iipdigital.usembassy.gov.
  2. Christopher R. Yukins & Steven L. Schooner, Incrementalism: Eroding the Impediments to a Global Public Procurement Market, 38 Geo. J. Int’l L. 529, 530 (2007).
  3. The U.S. small business programs began as an effort to support the stability of, and growth in the industrial base. For a good overview, see the history of the U.S. Small Business Administration at www.sba.gov (last visited December 12, 2015).
  4. Facilitative small business programs are those that help small businesses get established and grow. They include counselling services, loan guarantees, and similar support. Facilitative small business programs are differentiated from preferential small business programs that distort competition by creating a preference for small businesses, such as through set-aside programs, bid advantages, and the like. See Martin Burgi, Small and Medium-Sized Enterprises and Procurement Law--European Legal Framework and German Experiences, 4 Pub. Procurement L. Rev. 284, 289–94 (2007). See also William Kirkwood, The evolution of small business preferences in the United States, and selected lessons learned for the European Union, (2015) at 4 (available from the author at William@Kirkwoodonline.com)
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