The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives

25 Pages Posted: 12 Nov 2013

Date Written: November 2013

Abstract

This paper stresses the negative impact that the excessive levels of transparency imposed by public procurement rules can have on competition for public contracts and, more generally, on the likelihood of cartelisation of the markets where public procurement takes place. The paper critically assesses some recent Judgments of the Court of Justice of the European Union and the General Court from this perspective and shows how the top EU Courts are still oblivious to the fact that excessive transparency may diminish the effectiveness of procurement by reducing competition. It also indicates that the case law itself has unused balancing tools that may help reduce the negative impact of excessive transparency, particularly if coupled with a reduction of the financial incentives offered to litigants that have no other claim than a 'mere' lack of compliance with full transparency. The paper concludes that a reform in the enforcement and oversight mechanisms oriented towards the setting up of a semi-opaque review system would overcome some of the deficiencies identified in the current case law from a law and economics perspective.

Keywords: Public procurement, transparency, confidentiality, good administration, duty to provide reasons, collusion, bid rigging, competition, oversight, administrative discretion, litigation

JEL Classification: H57, K21, K23

Suggested Citation

Sanchez-Graells, Albert, The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives (November 2013). University of Leicester School of Law Research Paper No. 13-11. Available at SSRN: https://ssrn.com/abstract=2353005

Albert Sanchez-Graells (Contact Author)

University of Bristol - School of Law ( email )

Wills Memorial Building
Queen's Road Clifton
Bristol, BS8 1RJ
United Kingdom

HOME PAGE: http://www.howtocrackanut.com/

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