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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

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posted on 10.12.2014, 15:36 by Albert Sanchez Graells
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.

History

Citation

University of Leicester School of Law Research Papers, 2013, 13 (11)

Author affiliation

/Organisation/COLLEGE OF ARTS, HUMANITIES AND LAW/School of Law

Version

AO (Author's Original)

Published in

University of Leicester School of Law Research Papers

Publisher

University of Leicester School of Law

Copyright date

2013

Available date

10/12/2014

Publisher version

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353005

Book series

University of Leicester School of Law Legal Studies Research Paper Series;

Language

en

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