French law diverges less from EU procurement law now than used to be the case. This is not only due to the well-known tendency to create detailed directives, but also because France now favours a more flexible approach, especially regarding negotiation, and because some French specificities have been extended at EU level (reserved contracts to workshops, innovation partnerships, division into lots). However, there remain some overimplementations and risks of mistransposition, which may be redressed when the Code de la commande publique is adopted (expected towards the end of 2018).
Transparency in EU Public Procurement regime can be divided into advertising obligations under the EU Procurement Directives and access to documents under national laws of Member States. Due to limited EU rules on post-award transparency the disclosure rules are subject to national laws. Here history, political development, divisions to private and public law traditions as well as the tendency for corruption seem to have affected to the level of transparency in each Member State. This chapter provides a comparative analysis and discusses certain differences of national transparency rules including their objectives, scope, active publication obligations as well as some commercial concerns in public procurement regime.
Kirsi-Maria Halonen, Roberto Caranta and Albert Sanchez-Graells
It follows from the CJEU case law that transparency is a general principle of EU public procurement law or at least a corollary of the general - and foundational - principle of non-discrimination. While this starting point is indisputable, how transparency translates into the rules and practices of procurement of the EU institutions and in the Member States varies very significantly. Harmonisation by the EU public procurement and concessions directives goes at times into much detail. This is for instance the case with the publication and content of the notice starting most contract award procedures. But much is left to the Member States while EU institutions apply discretely different rules. For instance, rules concerning access to documents of the award procedure and to the concluded contract are very scant or not given at all, and this is the case even if the remedies directives are taken into consideration.