Penelope Giosa

European Procurement & Public Private Partnership Law Review, Jahrgang 18 (2023), Ausgabe 3, Seite 185 - 194

Bidding consortia may be very beneficial to the public sector, but at the same time they can serve as bid rigging devices to eliminate competition. This article discusses illustrative European cases involving consortia or cooperative joint ventures between undertakings taking part in a public procurement procedure. It looks at the European Commission’s Revised Guidelines for the assessment of horizontal co-operation agreements 2022, considering whether they clarified how economic operators can submit joint tenders without infringing EU competition law. Keywords: bid rigging; collusion; joint bidding; bidding consortia; horizontal guidelines

Wojciech Hartung, Katarzyna Kuźma

European Procurement & Public Private Partnership Law Review, Jahrgang 16 (2021), Ausgabe 2, Seite 110 - 124

This article analyses the European Commission (EC) Notice on tools to fight collusion in public procurement and on guidance on how to apply the related exclusion ground of 15 March 2021. The grounds and rules for the exclusion of contractors from participation in public procurement procedures adopted in the 2014 Directives raise many interpretation questions of the contracting authorities and contractors on the one hand and the bodies adjudicating on public procurement in EU Member States on the other hand. One of them is the ground referred to in Article 57(4)(d) of Directive 2014/24/EU. Its correct application in practice should contribute considerably to fighting collusive practices in public procurement. It seemed that the long-awaited EC guidance concerning the said exclusion ground will help answer questions of the market and thus contribute to increased legal certainty upon its application. However, this was not the case. Keywords: collusion; EC Notice; exclusion ground; sufficiently plausible indications; contracting authority

Penelope Giosa

European Procurement & Public Private Partnership Law Review, Jahrgang 16 (2021), Ausgabe 1, Seite 39 - 51

This article argues that the prevention of bid rigging has not been factored into the policy design of the EU Public Procurement Rules in a systematic and consistent way. As it will be shown, the critical junctures of EU Public Procurement Rules did not emerge alongside the anti-cartel legislation in Europe, but entirely independently of the latter. As a result, the current European Public Sector Directive 2014/24/EU is not adequately collusion proof and there is still a long way to go. Keywords: bid rigging; collusion; EU Procurement Directives; competition; transparency

Giuseppe Bitti

European Procurement & Public Private Partnership Law Review, Jahrgang 14 (2019), Ausgabe 2, Seite 129 - 133

The Case deals with the exclusion from procurement procedures of tenderers which are part of the same association, due to possible collusions among them. The Court of Justice of the European Union was asked whether national legislation which foresees additional exclusion grounds, forbidding undertakings which are part of the same associative or corporate structure from participating in tendering procedures through a common proxy, complies with EU law. The Court clarified the issue, and confirmed that the general principles of equal treatment, transparency and non-discrimination allow national legislation to foresee further grounds for exclusion, in addition to those mentioned by Directive 2004/18. Such legislation shall nonetheless comply with and be interpreted according to the equally important principle of proportionality.