Professional Documents
Culture Documents
ABSTRACT
The
paper
examines
the
disclosure
of
the public
under
EU
law
and
compare
such
1 INTRODUCTION
The principle of transparency is one of the fundamental
and underlying principles of EU public procurement rules.
The transparency of public administration is an important
element of anti-corruption measures, in establishing trust
towards public authorities as well as in securing access to
remedies
in
public
procurement.
Adequate
and
partys,
i.e.
another
tenderer
in
the
both
in
the
current
2014/24 Procurement
if
any
concerning
the
tender
the
rules
concerning
the
disclosure
of
2 BACKGROUND
The rules on disclosure of information under the EU Public
Procurement
Directives
after
contract
has
been
tenderers
and
authorities
are
to
provide
the
principle
of
transparency
is
not
In
general,
confidential
information
is
tender
evaluation
(Report
of
Finnish
Commerce
authority
in
public
procurement,
which
hand,
safeguarding
the
the
transparency
right
to
requirements
good
and
are
transparent
as
fundamental
freedom
under
the
tender
evaluation,
the
EU
Procurement
emphasizes
the
importance
of
the
protection
of
authority
shall
not
disclose
information
litigation
would
be
based
on
details
of
tenders
including
the
requirement
to
4 ACCESS TO CONTRACTS
Current EU Public Procurement rules set out limits on
contracting authorities and their contractors rights to
agree on amendments of the contract under the rules of
10
since
Directives,
the
parties
have
limited
after
Pressetext,
the
the
contract
CJEU
award.
considered
that
In
a
C-454/06
material
award
(para
76,
likewise
in
C-337/98
11
unless
contracting
authority
has
possibility
granted
by
the
Public
notice
required
in
relation
to
certain
12
regarding
includes
an
any
alleged
material
undertaking
contract
who
offers
13
5 DISTORTION OF COMPETITION
The principle of competition has received more and more
attention lately in the context of EU public procurement
law. This is a result of the CJEUs extensive case law on
the matter which has repeatedly emphasized that one of
the fundamental purposes of EU public procurement rules
is to ensure open and undistorted competition in the
member
states
as
well
as
to
develop
effective
that
the
rules
concerning
disclosure
of
14
along
transparency
with
and
the
equal
other
treatment
key
in
principles
the
of
previous
it
is
important
that
the
contracting
procedures
competition,
procedure
which
whether
or
in
could
in
an
subsequent
be
used
ongoing
to
distort
procurement
procedures
(emphasis
on
contracting
relationship
authorities
and
of
trust
between
participating
the
economic
15
procurement
process,
without
fear
that
the
(C-450/06
Varec,
para
36).
Therefore,
the
interest:
necessity
to
secure
undistorted
competition.
The question relating to preservation of fair competition
in the public contract markets and disclosure rules is twofold. Primarily there is a need to protect confidential
information due to the private interests of the owner of
such information. Disclosure of a trade secret could
damage the business activities of an undertaking but
moreover
it
would
cast
shadow
on
the
public
and
the
result
would
be
potentially
anti-
competitive.
16
On
the
other
hand,
even
the
disclosure
of
non-
20).
Whereas
the
objectives
of
the
EU
Public
This
tension
of
different
goals
attached
with
prevention,
transparency
in
fact
excessive
facilitates
and
the
unnecessary
formation
and
for
cross-border
trade
and
joint
public
17
in
the
Finnish
legislative
proposal
for
and
competitive
aspects
require
strict
procurements
(see
Ginter
Parrest
18
contracts
may
be
derived
from
the
19
to
effective
remedies
enacted
in
the
existing
EU
disclosure
obligations
set
out
by
the
Public
the
legal
protection
and
effectiveness
of
20
Finland
the
rules
on
transparency
in
public
or
municipality-owned
companies
and
other
rules,
the
trade
secrets
and
other
21
point,
all
documentation
relating
to
to
the
legislative
proposal
of
Finnish
22
access
also
to
non-public
procurement
of
the
Finnish
Parliamentary
Commerce
Taking into consideration the CJEUs conclusions in C450/06 Varec, it is rather hard to support Commerce
Committees
interpretation
that
the
all
information
23
Surprisingly,
it
seems
that
many
have
protection
of
trade
secrets
under
Finnish
law
shall
is
not
also
disclosed
prohibited
provided
under
that
such
national
law.
interpretation
appears
reasonable,
as
24
belonging
solely
to
the
discretion
of
an
has
consequently
concluded
that
legal
of
the
Finnish
Openness
of
Government
25
consider
the
protection
of
trade
secrets
as
well
as
measure
of
ensuring
the
competitive
reduced.
If
such
procedures
are
the
in
Finland
consequences,
is
surely
the
main
7 CONCLUSIONS
The current EU Public Procurement Directives aim to
enhance
the
protection
of
confidential
and
secret
26
undistorted
competition
within
the
public
laws
on
transparency
which
potentially
of
concluded
procurement
contracts.
27
may
lead
to
undesirable
consequences.
28
NOTES
Material contract modifications are considered as direct awards under EU law. The rules
on material modifications have been codified for the first time in Art. 72 of the
Procurement Directive 2014/24, but the doctrine is not a novelty as it was originally
developed by the Court of Justice of the European Union (CJEU), first in C-496/99 Succhi
di Frutta and then in several other cases including the famous C-454/06 Pressetext ruling.
2
In the event where EU Directives contain no provisions on subject matter, it is for the
internal legal order of each Member State to establish such rules. The national rules
however shall not compromise the effectiveness of EU law. On the division between EU
and domestic law, see for example C-470/99 Universale-Bau para 7173 and C-406/08
Uniplex para 2628.)
3
This is at least a general interpretation in Finland, see the Release of the Ministry of
The competition principle and the purpose of procurement rules under the CJEU case law
The problems relating to public contract registers are discussed in Snchez Graells
that have participated in the tender procedure and who consequently may have a legal
interest in obtaining a change to the procurement procedure. According to settled
national Finnish case-law, a party having an interest to a direct award procurement case
i.e. where a contracting authority has neglected to publish a contract notice and awarded
a contract directly to a certain supplier, is an entity which would have had an opportunity
to get its bids accepted had the procurement procedure been carried out in harmony with
EU public procurement law. In practice business activities in a field equivalent to the
subject matter of the direct award contract would be considered as a justification for a
party status.
7
It is however important to point out that in Finland the rules on transparency and
openness applied to contracting authorities are to some extent more extensive than the
rules concerning transparency during judicial proceedings applied by the courts.
Nevertheless, the Finnish Market Court has consistently held that a competitors right to
information has been met by providing him the total prices of the winning tenderer. The
principle of fair trial does not, according to Market Court, require an access to all winning
tenders unit prices or pricing methods (MaO 488/15, MaO 250/15, MaO 165/14 and MaO
153/14).
REFERENCES
Agenda for the Stakeholder Expert Group on Public Procurement of 14 September 2015.
Available at http://ec.europa.eu/internal_market/publicprocurement/docs/expertgroup/150914-agenda_en.pdf. [Retrieved 10 March 2016]
Arrowsmith, S. (2005). The Law of Public and Utilities Procurement. 2nd edition. Sweet &
Maxwell.
Arrowsmith, S. (2014). The Law of Public and Utilities Procurement. Regulation in the EU
and UK (Vol.1). 3rd edition. Sweet & Maxwell.
Brown, A. (2008). Protection of confidential information in procurement cases before
national review bodies: Varec v Belgian State (C-450/06). P.P.L.R. (4), NA119123.
Dimoulis, A. (2012). Tarjousasiakirjoihin sisltyvn elinkeinotoimintaa koskevan tiedon
suoja julkisissa hankinnoissa. Helsinki Law Review (1), 538.
EU Anti-Corruption Report 2014 Annex Finland. Brussels 3.2.2014. COM(2014) 38. ANNEX
26.
Available
at
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-
procurement contracts: the case for a general EU-law duty of disclosure. P.P.L.R. (4),
156164.
of
18(1)
of
Directive
2014/24.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2642971.
Available
[Retrieved
20
at
March
Available
at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353005.
Interseroh
Scrap
and
Metal
Trading
GmbH
Sonderabfall-Management-
Finnish Courts
KHO 15.3.2016 case 908
KHO 2010:20
MaO 40/16
MaO 239/15
MaO 488/15
MaO 250/15
MaO 165/14
MaO 153/14
UK cases
Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council [2010] EWCA Civ 1214