Disclosure rules in eu public procurement: Balancing between competition and transparency
| Date | 01 April 2017 |
| DOI | https://doi.org/10.1108/JOPP-16-04-2016-B005 |
| Published date | 01 April 2017 |
| Pages | 528-553 |
| Author | Kirsi-Maria Halonen |
| Subject Matter | Public policy & environmental management,Politics,Public adminstration & management,Government,Economics,Public Finance/economics,Texation/public revenue |
JOURNAL OF PUBLIC PROCUREMENT, VOLUME 16, ISSUE 4, 528-553 WINTER 2016
DISCLOSURE RULES IN EU PUBLIC PROCUREMENT: B ALANCING BETWEEN
COMPETITION AND TRANSPARENCY
Kirsi-Maria Halonen*
ABSTRACT. The paper examines the disclosure of information within public
contract awards under EU law. EU Public Procurement rules have several
objectives that may at some times be conflicting with each other. A certain
level of t ransparency of public procurement procedure is necessary in order
to fight corruption, enhance trade opportunities and ensure effective legal
remedies. On the other hand, too much transparency may have certain anti-
competitive effects. The national laws regarding disclosure of information
vary in different EU member states. In Finland the EU law principle of
effective r emedies has been interpreted as requiring full transparency
among the bidders. The transparency rules under EU law and c ertain
Member States’ national laws are analysed. As a conc lusion, it is suggested
that the rules on disclosure should not be left solely to the discretion of
member states as the over-transparent approach taken by certain member
states may negatively affect the markets both on a national and EU level.
INTRODUCTION
The principle of transparency is one of the fundamental and
underlying principles of EU public procurement rules. The
transparency of public procurement 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 transparent justifications of contract award decisions
are necessary in order for the economic operators that have taken
part in a competitive procedure to evaluate their own legal standing ---
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* Kirsi-Maria Halonen, P h.D., is a University Lecturer, Faculty of Law,
University of Lapland, Finland. Her research interests include public
procurement law, contract law as well as transparency and anti-corruption
related issues.
Copyright © 2016 by PrAcademics Press
DISCLOSURE RULES IN EU PUBLIC PROCUREMENT: COMPETITION AND TRANSPARENCY 529
and equal treatment in comparison to other bidders in the contract
award.
The Finnish Act on the Openness of Government Activities (laki
viranomaisten toiminnan julkisuudesta 621/1999), later referred as
Openness Act, grants the parties of a contract award procedure
access to all procurement documents including offers of other
tenderers. A party’s, i.e. a fellow tenderer in the procurement process,
right to information is not limited to non-confidential information but
includes also confidential and trade secret information if such
information is assessed in tender evaluation and thus may have
affected such party’s legal position. It is not clear to what extent the
disclosure rules are a matter of national rules and whether some
obligations can be derived from EU rules. Nevertheless, some
obligations and guidelines are included both in the current 2014/24
Procurement Directive and the case law of Court of Justice of
European Union (CJEU).
The purpose of this paper is to identify the rules of disclosure
under EU law and to clarify the disclosure requirements – if any –
concerning the tender documentation of other tenderers and
contracts in public procurement with an emphasis on the protection
of confidential information. In addition, the paper analyses national
law on transparency requirements in public procurement within an EU
Member State, Finland, where the rules seem to go far beyond what
is required or even accepted under EU law. In Nordic Countries, the
tradition of full transparency of public administration has created
concerns for the protection of confidential information. Although a
certain level of transparency in public procurement is necessary for
anti-corruption purposes, this paper concentrates on the conflict
between effective remedies and disclosure obligations in a legal
regime where full transparency is considered as a starting point.
This paper proceeds in three parts. First, this paper looks into the
tension pertaining to transparency by elaborating the potential anti-
competitive effects of extensive transparency and in comparison,
transparency as an anti-corruption measure or a necessity for
effective remedies in public procurement under EU law. Secondly, the
paper analyses the rules concerning the disclosure of information
under EU law. Finally, before conclusions, the paper addresses the
serious concerns relating to current Finnish disclosure rules that
ensure competitors’ access also to trade secrets of fellow tenderers.
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