The opening up of the market for public procurement has a key function in the completion of the internal market. However the public procurement market is systematically closed off from foreign contractors, suppliers and service providers. Competition, to the extent that this exists in relation to public procurement, remains at the national level; only a small percentage of public contracts are awarded to businesses from other member states. Despite the attempts of the European legislature to liberalize the market for public contracts, the desired result has not yet been achieved.
This issue raises research questions including the following:
- Can the award of public contracts, as an instrument for achieving industrial/political, regional, social and/or cultural aims, be in conflict with primary (Articles 30, 59 and/or 92) and/or secondary (the directives on public procurement) Community law?
- from a legal point of view, is the Community legislation on public procurement effective?
- to what extent can an actual opening up of the European market for public procurement be expected on the basis of primary Community law?
- to what extent can actual opening of the European market for public procurement be expected on the basis of the secondary Community law relevant to this area? What are the primary factors hindering the liberalization of this market sector, including the following subsidiary questions: what are the consequences of the wave of privatization of the 1990s for the public procurement market? To what extent do public/private initiatives hinder a real liberalization of the public procurement market? To what extent do corruption and the infiltration of criminal organizations into this market sector hinder its liberalization?
- to what extent is the directive the most desirable and effective legal instrument available to the European legislature to achieve liberalization of the European procurement market through the harmonization of national procurement legislation?
-The liberalization directives relating to public procurement, implemented in different ways in different member states, are interpreted differently by national judges (insofar as there is no ECJ authority on that point). To what extent does the interpretation of the directives by different national judges correspond with European procurement law? Can we speak of an interaction between this national case law on European procurement law, and European procurement law?
- Do measures which might be taken at national level to prevent the infiltration of criminal organizations into the public procurement sector conflict with the closed procurement system as laid down in the directives on public contracts?
- A last question is the fundamental question of the desirability of retaining the principle of 'public' procurement is a basis for liberalization of this market sector, given the changed nature of the majority of the players in the procurement process. Can we still maintain the basic principle that public contracts must be awarded through public (and therefore complex, time-consuming and expensive) procurement procedures, in order to combat the protectionist attitude of governments, or do the 'new' players on the demand side of this market ensure a change in the economic motives determining their procurement policy, and the legal status of the purchasers so that the principle of public procurement (procurement publicized by public announcement) as the basis of liberalization of this market sector must be thrown open to discussion once again?