Martin Trybus presents at conference in Beirut

In June 2015 IEL Director Martin Trybus presented a paper on a conference on public procurement reform organised by OECD/SIGMA and the Office of the Lebanese Minister for Administrative Reformin Beirut, Lebanon attended by public procurement officials from Morocco, Tunisia, Egypt, Jordan and Lebanon.

In his presentation entitled “Public Procurement Reforms of countries in transition with European perspective: challenges and approaches” Professor Trybus first emphasized the importance of the Internal Market as the core of the core of the European Union. States acceding to the EU have to comply with the acquis communautaire. According to Article 34 TFEU: Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.” Procurement rules and decisions limiting market access from other Member States are measures having equivalent effect to a quantitative restriction and are thus prohibited.

Overall, following the Treaty on the Functioning of the European Union (formerly EC Treaty), the following principles must always be respected for any public procurement action: non-discrimination (on grounds of nationality), equal treatment, transparency, and review and remedies.

Detailed rules are then contained in an extensive set of directives and principles, namely the Public Sector Directive 2004/18/EC-2014/24/EU, the Utilities Directive 2004/17/EC-2014/25/EU, the Concessions Directive 2014/23/EU, the Defence and Security Directive 2009/81/EC, the Public Sector Remedies Directive 665/89/EEC, the Utilities Sector Remedies Directive 93/13/EC, the Regulations on thresholds, and the ‘Outside’ Interpretative Communication 2006.

The objectives of these Treaty principles and detailed Directives can comply or conflict with national objectives in transition countries, namely the protection of national economic operators, the promotion of SME, development, environmental objectives, social objectives, political objectives, the fight against corruption, and value for money.

In addition to the considerable problems of aligning their laws and practice with the acquis communautaire, problems of transition countries also arise out of little or no previous experience, the high level of detail of procurement rules, a compliance culture, red tape, the independence of procurement review bodies, under-developed electronic procurement, over-reliance on the open procedure, no use of competitive dialogue or the negotiated procedure with competition, problems associated with training and knowledge transfer, corruption and finally political pressure. Despite all these problems transitional countries change because of the carrots of EU membership and funding, the sticks of no or rather later EU membership and funding, because they do not live behind the moon, the activities of SIGMA, pressure from civil society, their independent review and remedies system, and finally experience and success.