Enhancing leniency programme in public markets

2020 ◽  
Author(s):  
Penelope Alexia Giosa
Keyword(s):  
Public Procurement ◽  
Competition Law ◽  
Competition Authority ◽  
Public Markets ◽  
The Public ◽  
European Court ◽  
Private Action ◽  
Policy Objectives ◽  
Self Cleaning ◽  
Leniency Programme

Abstract The article focuses on the leniency programme, the key mechanism to strengthen the public enforcement of competition law, and its compatibility with the debarment mechanism and self-cleaning measures, which are both procurement remedies. As the article will show, procurement remedies interfere with cartel enforcement and the debarment mechanism undermines leniency in public procurement. The fact that firms may be banned from bidding, where there are plausible indications for their participation in agreements aiming at distorting competition, discourages infringing companies from coming forward and self-reporting. Even the self-cleaning measures under the current procurement Directive 2014/24/EU, which aim to help debarred firms to avoid exclusion or minimize its risk, undermine leniency in public procurement. This is particularly true after the recent judgment of the European Court of Justice in c-124/17 Vossloh Laeis GmbH v Stadtwerke München GmbH case. In this case, it was held that a contracting authority must be able to ask a leniency applicant to provide the decision of the competition authority concerning it. This must apply even if there is a pending private action for damages for breach of competition law by the contracting authority against that leniency applicant. In view of the above conflicting policy objectives, a number of proposals are discussed in order to better align leniency programmes with the mechanism of debarment and self-cleaning policy in public procurement. In this way, the article contributes to the optimal design of enforcement policies.

scholarly journals Public Policies for Procurement under COVID19

2021 ◽  
Vol 1 (3) ◽  
pp. 9-36
Author(s):  
Luís Valadares Tavares ◽  
Pedro Arruda
Keyword(s):  
Comparative Analysis ◽  
Comparative Study ◽  
Public Procurement ◽  
Public Policies ◽  
European Directives ◽  
Public Markets ◽  
The Public ◽  
Public Contracting ◽  
The Comparative Study ◽  
Selection Of

Public procurement is a main issue in the frontline of Governments fighting COVID 19 pandemic as the need for additional and urgent acquisitions as well as the need to consolidate the supply chains and to promote sustainable and innovative procurement have been a source of deep changes and main challenges disturbing public markets and invalidating several assumptions of the traditional public contracting. In this paper, the development of appropriate public policies to cope with these challenges is studied following the approach suggested by several authors and including four stages: a Stage on Facts and Issues where the main challenges and conditions are studied, the Options Stage to describe which polices and procedures can be adopted, a Values Stage stating the main values to be pursued and, finally, a Policies Stage including the selection of the recommended policies. The analysis of the challenges and facts includes the study of a taxonomy of short and longer term needs and the available options are based on the comparative study of procedures ruled by the European Directives on Public Procurement approved on 2014. The major values to be respected include the principle of competition which is a major institutional principle of the European Treaty and of the Directives as well as the goal of promoting sustainable and innovative public procurement. Several indicators are suggested to describe the application of the public procurement policies adopted across EU and their comparative analysis is presented using the TED data for contracts concerning COVID 19. The case of Portugal is discussed and final remarks about the recommended public policies are also included herein.

scholarly journals Priority Setting as A Double-Edged Sword: How Modernization Strengthened the Role of Public Policy

2020 ◽  
Vol 16 (4) ◽  
pp. 435-487
Author(s):  
Or Brook
Keyword(s):  
Public Policy ◽  
Priority Setting ◽  
Competition Law ◽  
Common View ◽  
The Public ◽  
Eu Competition Law ◽  
National Competition ◽  
Policy Objectives ◽  
Detrimental Impact

Abstract This article questions the common view that the modernization of EU competition law has removed public policy considerations from the public enforcement of Article 101 TFEU. Based on a large quantitative and qualitative database including all of the Commission’s and five national competition authorities’ enforcement actions (N ≈ 1,700), it maintains that modernization has merely shifted the consideration of public policy from the substantive scope of Article 101(3) TFEU to procedural priority setting decisions. Instead of engaging in a complex balancing of competition and public policy considerations, the competition authorities have simply refrained from pursuing cases against anticompetitive agreements that raise public policy questions or settled those cases by accepting negotiated remedies. This outcome, the article claims, is a double-edged sword. The Commission’s attempt to narrow down the scope of Article 101(3) as part of modernization has not eliminated the role of public policy in the enforcement. Rather, undertakings can reasonably assume that restrictions of competition that produce some public policy objectives will not be enforced, even if they do not meet the conditions for an exception. These discretionary nonenforcement decisions have a detrimental impact on the effectiveness, uniformity, and legal certainty of EU competition law enforcement. JEL: K21, K230

scholarly journals Europeanisation of the Polish Leniency Programme

2018 ◽  
Vol 11 (18) ◽  
pp. 61-83
Author(s):  
Paulina Korycińska-Rządca
Keyword(s):  
Competition Law ◽  
Competition Authority ◽  
Eu Law ◽  
Legal Rules ◽  
Application Of Law ◽  
Polish Law ◽  
Leniency Programme ◽  
The Impact ◽  
The Eu

Leniency programmes in competition law make it possible to grant immunity from fines, or a reduction of any fine that would otherwise have been imposed on an undertaking who was a party to an unlawful agreement restricting competition. This immunity or fine reduction is granted as a reward for the cooperation with the competition authority and the provision of evidence of an unlawful agreement restricting competition. Legal rules regarding the application of leniency programmes have been introduced at the EU level as well as in the national legislations of numerous countries, including Polish law. The author makes an attempt to establish the degree to which the Polish leniency programme is an effect of the impact of EU law or the application of law within the EU (for instance, by its institutions). The analysis has been made on three levels. Examined first was the degree to which the Polish leniency programme is a result of spontaneous harmonisation. Second, the impact of legislative harmonisation in the area of leniency programmes was taken into consideration. Finally, it was verified whether those Polish authorities that apply Polish competition law are inspired by judgements issued by EU courts in cases regarding leniency programmes.

scholarly journals The transposition of the 2014 EU Directives on public procurement by Portugal: woes and expectations

2018 ◽  
Vol 1 (1) ◽  
pp. 33-44
Author(s):  
Luís Valadares Tavares
Keyword(s):  
Public Administration ◽  
Environmental Sustainability ◽  
Public Procurement ◽  
Legal Framework ◽  
New Approach ◽  
Public Markets ◽  
The Public ◽  
Administration Culture ◽  
Eu Directives ◽  
Negative Impacts

The new EU Directives on Public Procurement are oriented to promote the application of the concept of strategic public procurement which has been subject to several communications and discussions promoted by the European Commission and European Parliament. This new approach to Public Procurement has deep implications in the legal framework adopted by each Member State as well as in the public administration culture and organization in order that the new objectives of promoting the qualification of markets, the increase of innovation, the respect by social cohesion and environmental sustainability and a better access to public markets by SME’s will be achieved aligned with the UE 2020 Agenda. In this paper, the process and the results of the transposition of this Directives by Portugal are studied not just in terms of the respect for the Directives rules but also considering its likely positive and negative impacts on Portuguese public markets which are also synthetically described herein.

scholarly journals The Amagasaki Pilot Social Impact Bond in Japan – Participation of SMEs in Public Markets

2018 ◽  
Vol 1 (1) ◽  
pp. 75-82
Author(s):  
Shinji Hosomi
Keyword(s):  
Process Improvement ◽  
Social Impact ◽  
Social Problems ◽  
Public Procurement ◽  
Growth Strategy ◽  
Local Fields ◽  
Public Markets ◽  
The Public ◽  
The Social ◽  
Employment Support

Social Impact Bond (SIBs) attracts massive attention recently not only by major enterprises, but by SMEs in Japan to solve the social problems. This paper analyzes the first SIBs case on youth employment support in Amagasaki, Japan as well as the first SIBs case in Augsburg, Germany. Further, it considers the entry of SMEs that are familiar with local fields and circumstances to realize public-private partnerships and examine the possibility of their participating into the SIBs in Japan. SIBs invite the process improvement of the public procurement. Across SIBs, participation of SMEs in solving social problems conforms to the growth strategy of the Japanese government, and as a result to contribute the process improvement of public procurement.

Characteristics Of private markets and accessibility of small and medium enterprises to public procurement markets: Pharmaceuticals in egypt

2015 ◽  
Vol 15 (4) ◽  
pp. 476-513 ◽  
Author(s):  
Lobna Abdellatif ◽  
Mohamed Zaky
Keyword(s):  
Survey Data ◽  
Small And Medium Enterprises ◽  
Public Procurement ◽  
Policy Implications ◽  
The Other ◽  
Public Markets ◽  
The Public ◽  
Private Market ◽  
Medium Enterprises ◽  
Private Markets

The current paper explores the effect of private market characteristics on the access of small and medium enterprises (SMEs) to public markets in some sectors. Using survey data of small and medium enterprises in the pharmaceutical sector in Egypt, we confirmed this effect. We found that regulations of drugs pricing and registration in the private market constrained the capacity of those firms to compete in the public markets. However, some other factors play it the other way. The policy implications of these findings indicate that governments need to account for private markets characteristics when designing support packages for smaller enterprises in public procurement markets.

scholarly journals PROBLEMATICS OF AMENDMENTS MADE IN TENDER DOCUMENTS IN PUBLIC PROCUREMENT – THE PERSPECTIVE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION

2020 ◽  
pp. 164-183
Author(s):  
Una Skrastina ◽  
Dzeina Gaile
Keyword(s):  
European Union ◽  
Analytical Method ◽  
Public Procurement ◽  
European Court Of Justice ◽  
The European Union ◽  
Legal Principles ◽  
The Public ◽  
Court Of Justice ◽  
European Court ◽  
Made In

During the procurement process, it is often found that the tenders submitted are deficient, for example, required documents are not submitted. Given the amount of information to be provided, the types of errors are different and can apply to the qualification of the tenderer, its technical or financial tender and other aspects. In each of these situation procurement commission must evaluate whether it is possible to correct the error or the tender should be rejected. The Public Procurement Law does not contain very detailed and clear regulation on this situation. Therefore decisions of contracting authorities are often challenged and found to be unfounded. It justifies the topicality of the study. The aim of the study is to summarize and analyze the findings of the European Court of Justice to determine what legal principles and considerations have to be taken into account in such situations and to make recommendations for further action in Latvia. Research methods used are descriptive, comparative and analytical method. The study will result in suggestions as to what conditions should be considered when assessing the possibility of corrections of the tender.

scholarly journals Feeding the nation in times of crisis: the relaxation of competition law in the United Kingdom

2020 ◽  
Vol 19 (2) ◽  
pp. 68-78
Author(s):  
Okeoghene Odudu
Keyword(s):  
Public Policy ◽  
United Kingdom ◽  
Supply Chain ◽  
Competition Law ◽  
Competition Authority ◽  
The Public ◽  
Enforcement Action ◽  
The United Kingdom ◽  
Real Value ◽  
The Government

In order to respond to the COVID-19 pandemic it has been recognized universally that cooperation between competitors will be necessary. It is also recognized that some of the cooperation contemplated will infringe competition law. A number of techniques are available by which conduct that infringes competition law can escape prohibition. Two techniques used have been to issue guidance on how the competition authority understands the law to apply and to articulate how it will exercise its discretion when deciding to take enforcement action. The combination of these two techniques provides a degree of comfort. In the United Kingdom, the government has gone further by identifying necessary cooperation and excluding such cooperation from competition law on grounds of public policy, in one instance for those in the groceries supply chain. The use of an exclusion order means that there is political accountability for the consequences the decision to set aside competition law will have, both for competitors, others in the supply chain, and for different consumer groups. For parties to excluded agreements, there is certainty ex ante that the cooperation is immune from competition challenge. Avoiding the need to assess the compatibility of an agreement with competition law, rather than permission to engage in incompatible behaviour, can be seen as the real value of the public policy exclusion order granted in relation to groceries.

7. Procedure: complaints and third-party rights

2019 ◽  
pp. 156-179
Author(s):  
Sandra Marco Colino
Keyword(s):  
Competition Law ◽  
The Other ◽  
Third Party ◽  
Competition Authority ◽  
Public Enforcement ◽  
The Public ◽  
National Courts ◽  
The Uk ◽  
The Cost ◽  
Private Litigation

This chapter focuses on the rights of those wishing to take action against an infringement of competition law, potentially with a view to being compensated for the harm they may have suffered. One option is going to the relevant competition authority and filing a complaint to trigger the public enforcement route, saving the cost of litigation. The other option is to seek competition law enforcement in private claims before the courts. Claimants may seek damages or other remedies, including injunctions. In the UK, damages may be sought before the Competition Appeals Tribunal (CAT) and before the national courts. Collective claims can only be brought before the CAT. The number of private actions is increasing, and efforts have been made both by the EU and UK legislators to encourage more private litigation.

scholarly journals La normativa europea procesal de contratación pública y el sistema actual de recursos contractuales

2012 ◽  
Author(s):  
Santiago González-Varas Ibáñez
Keyword(s):  
Public Procurement ◽  
Competition Law ◽  
Administrative Law ◽  
Public Interests ◽  
The Public ◽  
The Past ◽  
Spanish Law ◽  
El Sistema ◽  
Administrative Review ◽  
Administrative Jurisdiction

<p align="justify">La jurisdicción contencioso-administrativa y el Derecho administrativo vienen configurando el sistema de control de las adjudicaciones contractuales. El nuevo Tribunal Administrativo Central de Recursos administrativos y órganos similares territoriales arraigan el Derecho administrativo en el ámbito contractual, pero pueden llegar a afectar el significado de la jurisdicción contencioso-administrativa. En todo caso, aumentan las exigencias y, en el Derecho español, esto significa que aumenta el rigor del Derecho administrativo, mientras que en otros países se oculta esta realidad en la medida de lo posible prefiriéndose enfocar la materia jurídica desde el punto de vista del Derecho de la competencia. Pese a posibles referencias en el Derecho comparado, las organizaciones del Derecho de la competencia no suponen actualmente en España crisis alguna del modelo tradicional, habiéndose llegado a la asunción de distintas parcelas o ámbitos de control. El reto en realidad es que las resoluciones que se adopten se adecuen, mejor que en el pasado, a los intereses públicos y a los de justicia de los licitadores.</p> <p align="justify"><b>The contentious-administrative jurisdiction and administrative law have been shaping the public contract awards control system. The new Central Administrative Court of Administrative Review and similar territorial bodies anchor administrative law in the public procurement sphere, but they can go as far as to affect the meaning of the contentious-administrative jurisdiction. In any case, they increase the requirements and, in Spanish law, this means increased rigour in administrative law, whilst in other countries this reality is hidden to the extent possible by preferring to approach the legal matter from the perspective of competition law. Despite possible references in comparative law, competition law organisations are not currently posing any threat to the traditional model in Spain, having assumed different domains or spheres of control. The true challenge is to ensure that the decisions adopted are more in keeping with the public interests and the justice interests of the bidders than in the past.</p>

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