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.
Sánchez Graells, A '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:
http://ssrn.com/abstract=2353005.
I have just uploaded a new paper on SSRN on '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'. The abstract is as follows: