This chapter links transparency and effective judicial protection. Transparency in some of its multifold forms acts as a precondition to effective judicial protection. These two principles combined, together with their corollaries and the rules adopted to implement them (including those concerning the right of access to documents), define the level of protection offered to economic operators challenging public procurement decisions by EU institutions or national contracting authorities or entities. The duty to give (or to provide) reasons acts as a bridge between transparency and the right of access on the one hand, and effective judicial protection on the other. In many jurisdictions, judicial review focuses on the reasons given (or provided) by contracting authorities or entities. The extent to which contracting authorities or entities must disclose reasons for their decisions together with the types of accessible documents define the material upon which courts base their judgments.
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.