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Collusion in public procurement - A “notice” from the Commission

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van Thuyne Gauthier
Gauthier van Thuyne

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Brussels

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Pissierssens Veerle
Veerle Pissierssens

Senior Associate

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Olgemoeller Udo Herbert
Dr Udo Herbert Olgemöller

Partner

Frankfurt am Main

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Opel Anna
Anna Jung

Associate

Frankfurt am Main

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Image of Amelie Legein
Amélie Legein

Associate

Brussels

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06 May 2021

On 15 March 2021, the European Commission (the Commission) published its long-awaited “Notice on tools to fight collusion in public procurement and on guidance on how to apply the related exclusion ground” (the Notice). 

The Notice is primarily aimed at (i) Member States and public authorities implementing the EU Directives on public procurement and (ii) public procurement officers applying the implemented public procurement legislation in practice. 

However, the long-awaited Notice is disappointing: while providing some insights into the use of certain concepts (eg standard of proof – see below), it remains unclear how useful it will be in practice, as the Commission did not seize the opportunity to provide concrete examples from various Member States and to refer to Member State guidance and/or case law (like for instance, Germany, which has built up a lot of expertise and case law). 

In addition, the Notice abstractly refers collusion in public procurement’s and its  interplay with competition law and is rather general in nature.