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Edited by Kirsi-Maria Halonen, Roberto Caranta and Albert Sanchez-Graells

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Edited by Kirsi-Maria Halonen, Roberto Caranta and Albert Sanchez-Graells

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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.

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Kirsi-Maria Halonen

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.

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Albert Sanchez-Graells

This chapter provides some comparative reflections on the need for public procurement systems to reach an adequate balance between their transparency requirements and the risks of collusion among tenderers, or bid rigging. The chapter concentrates, in particular, on the domestic transposition of the EU rules in nine selected jurisdictions. It places the domestic systems in a spectrum that goes from ‘transparency-first’ to ‘competition-first’ systems. The chapter also offers some comparative reflections concerning the substantive balance achieved in different jurisdictions, as well as on the diverging institutional arrangements adopted in these nine EU member states.

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Roberto Caranta

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.

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Albert Sanchez-Graells

This chapter offers an overview of the rules applicable to transparency and disclosure of documents in the context of public procurement of the EU Institutions under the rules of the Financial Regulation and its Rules on Implementation, as well as the EU FOIA Regulation (Reg 1049/2001). It takes into account the novelties that the Omnibus Regulation will introduce from 1 January 2019. The chapter pays particular attention to the protection of commercial interests and business secrets in the context of procurement debriefing in front of the EU courts.

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Carina Risvig Hamer

This chapter provides an overview of the Danish rules on access to information in a public procurement context. It explores which types of documents and information interested parties can gain access to as well as the reasoning for not disclosing certain information. This is done by looking at which type of the information must be available before a tender is submitted (ex ante) as well as which information tenderers and other interested parties can gain access to after the award procedure has taken place (ex post). In a procurement context, the contribution concentrates on how the EU rules have been transposed in Denmark and places emphasis on the choices made by the Danish legislator as well as how case law and practice has developed regarding transparency in public procurement procedures.

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Pilvi Takala and Suvituulia Taponen

Publicity of authorities’ activities is a key principle of Finnish public administration, defined in the Openness Act. Public authorities’ procurement data is accessible to anyone, after the contract has been signed, excluding confidential information. Nevertheless, public access to procurement documentation has been narrowed down in recent years due to developments in procurement centralization. Most Finnish CPBs are limited liability companies (bodies governed by public law), which are not required to disclose procurement documentation to third parties. Parties to procurement processes are always granted access to procurement documentation, to assess due process, however, trade secrets are not revealed. The Finnish courts and monitoring officials have access to all procurement documentation, including confidential information, which allows them to thoroughly examine the legality of procurement processes.

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Tiphaine Blay

In France, the framework applicable to the right of access to procurement information is set by two texts: a 1978 law establishing a general right of access to administrative documents, and the French transposition of the 2014 Procurement Directive. These texts and the relevant interpretive case law show that, by principle, procurement information shall be made available to an unsuccessful bidder or any third party, provided that the communication of such information does not violate business secrets. The aim of this chapter is to study the general framework for the regulation of transparency in procurement, including both ex ante and ex post procurement transparency. It also focuses on the notion of business secrets and its interpretation by public authorities and the administrative judge, as well as on the impact of the rules on transparency on procurement litigation.