Direito da União Europeia, controle externo e sustentabilidade : a contribuição jurídico-institucional do Tribunal de Justiça e do Tribunal de Contas da União Europeia rumo à efetividade das aquisições públicas sustentáveis

Abstract

This thesis presents an integrated analysis of the contribution of the Luxembourg courts to the development and control of sustainable public procurement in the context of European integration, namely the Court of Justice of the European Union (CJEU) and the European Court of Auditors (ECA). The research begins with the observation that public procurement has progressively shifted from a predominantly economic instrument to a potential vector for achieving the sustainability objectives set by the European Union (EU), although this promise has not yet become a uniform or sufficiently ambitious practice. To this end, the following research question was formulated: To what extent do the Court of Justice of the European Union's judicial activity and the European Court of Auditors' control affect the regulation and implementation of sustainable public procurement within the framework of European integration? The general objective was to analyze the impact of these two institutions' actions on the development of sustainable practices in European public procurement. The specific objectives, explored throughout four chapters, are: (I) to assess the impact of the Court of Justice's case law on sustainable procurement policies and practices, by examining the decisions that legitimized the adoption of environmental and social criteria in public tenders; (II) to investigate the role of the European Court of Auditors in the supervision and auditing of sustainable public procurement, especially through the analysis of the reports and recommendations issued; and (III) to identify good practices and lessons learned in the European context, in order to understand the factors that contribute to or hinder the incorporation of sustainable criteria by contracting authorities in their tender documents. Methodologically, this is a qualitative, descriptive, and analytical study based on the hypothetical-deductive method and the documentary analysis of directives, CJEU case law, ECA reports and audits, as well as institutional and doctrinal documents selected according to criteria of thematic relevance, legal relevance, and chronological evolution. The results demonstrate that the CJEU played an important role in legitimizing environmental and social criteria in the various phases of procurement, under the parameters of proportionality, measurability, and linkage to the object of the contract. However, the thesis argues that this action, although progressive in its structural frameworks, remains marked by moderation and caution. Regarding the institutional role of the ECA, the research shows how its audits identify the mismatch between the normative legitimacy affirmed by the CJEU and the fragmented implementation observed in the Member States. Its analyses demonstrate the persistence of the lowest-price criterion, the decline in competition, the lack of comparable indicators, and the still timid use of sustainability clauses. Concomitantly, the audits show that the knowledge produced by the ECA is incorporated into the political agenda and fuels the reform of directives, even contributing to the proposal of a new regulatory package aimed at simplification and measurement of results. Therefore, it is possible to conclude that the functional complementarity between the CJEU and the ECt contributes to an integrated governance model for sustainable public procurement, in which legal interpretation and empirical evidence are articulated to promote normative coherence, accountability, and institutional learning. However, this thesis assumes that this arrangement, as it currently stands, is not yet capable of guaranteeing that public procurement fully fulfills the strategic role assigned to it in the Union's ecological transition, which is why the revision of the directives appears less as a punctual improvement and more as a response to the structural limitations of a model that is still falling short of its intended goals. [resumo fornecido pelo autor]