The EU Regulation Influence On Corruption Prevention In Public Procurement In France

The EU regulation

influence on corruption prevention in public procurement in France

Government procurement, also called public tendering or public procurement, is the procurement of goods and services on behalf of a public authority, such as a government agency. The first article of the French Public Procurement code states that : "Public contracts are contracts for pecuniary interest between contracting authorities [...] and public or private economic operators, to meet their requirements for work, supplies or services”. With 10 to 15% of GDP in developed countries, and up to 20% in developing countries, government procurement accounts for a substantial part of the global economy.

To prevent fraud, waste, corruption or local protectionism, the law of most countries regulates government procurement more or less closely. It usually requires the procuring authority to issue public tenders if the value of the procurement exceeds a certain threshold.

In 2011, public works, goods and services in France accounted for 18.5% of the GDP. The

value of calls for tender published in the Official Journal as a percentage of total expenditure on public works, goods and services was 18.3% in 2010.

Government contracts are subject to a body of rules, wholly separate from private contracts. This is the case in France where government procurement contracts are subject to a distinct droit administratif (administrative law) regulating both the formation and execution of the contract, which is applied by a special system of administrative courts.

A important objective of many public procurement systems, and of public procurement regulation is to ensure integrity in the system. Integrity refers, first, to the idea that procurement should be carried out without any influence of corruption. Corruption can cover various types of practice. Many such practices involve various forms of collusion between government and bidders, notably : awarding contracts on the basis of bribes, awarding contracts to firms in which one has a personal interest, Awarding contracts to firms in which one’s friends, family or business acquaintances have an interest and awarding contracts to political supporters.

Requiring that those involved in the competition are treated on an equal basis during the conduct of the competition can help ensure value for money and/or prevent corruption in the procedure in two ways:

-  By limiting the opportunities for the procuring entity to make discretionary decisions that could be abused to favour particular firms (for example, a firm that has paid a bribe or – from the perspective of opening up markets – a national firm).

-  By encouraging firms to have confidence in the process and thus encouraging the best firms to participate in the procedure.

The EU procurement regime is a well- developed regional regime, which has to a large extent served as a model for subsequent procurement regimes, and has had a significant influence on the development of the current Government Procurement Agreement (GPA).

The main EU legal rules on procurement derive from two sources. The first one is the general free movement principles of the Treaty on the Functioning of the European Union, which forms a basis for the European procurement framework. Another source of EU rules on procurement consists of a series of directives regulating award procedures for major contracts. The EU directives can be divided into two categories apart from the remedies directives: the public sector directives and the utilities directive.

The main aim of the EU procurement rules is to eliminate restrictive procurement practices so far as they affect trade between Member States and thus to realise the full benefits of a single market in those sectors affected by public procurement. The EU directives, like the GPA, seek to ensure non-discrimination in award procedures by mainly requiring procuring entities to follow detailed transparency procedures so that it is more difficult to hide discrimination.

In its latest version, the Public Procurement code, is a fairly successful transposition of the European texts (the markets directives mostly the directive 2004-18 dating from march 31st 2004) . They establish a new set of legal rules organised around three principles : the free access to the public orders, the equal treatment of the candidates and transparency. The successive modifications of the french legislation (2001, 2004, 2006) can be explained by the fact that the public procurement law struggled to transcript european directives and accept to lose its specificities in favor of a supranational legislation. The public procurement code evolved little by little and sometimes including word for word dispositions from the EU law, in particular regarding the possibility to take into consideration the sustainable development, which with the emergence of this new code allowed lots of new initiatives.

The UN, the European Commission, the Organisation for Economic Co-operation and Development (OECD) encouraged at the beginning go the 2000’s the possibility of integrating social or environmental clauses, while preserving a fair competition and a bigger transparency.

France implemented a far-reaching legislative reform in 2007, following

recommendations from the Council of Europe's Group of States against Corruption (GRECO) and from the OECD. It included, a new anti-corruption law composed of mostly criminal provisions. The law introduced seven new offences related to corruption, broadened the scope of previous offences, notably of trading in influence and of offences related to members of the judiciary, and also authorised the use of special investigative techniques in the investigation of corruption-related offences. While welcoming the reforms, the OECD, GRECO and United Nations recommended further

amendments

France has been classified 22nd out of 177 countries in term of corruption by the non-governmental organization of transparency. This study was checking; political parties, police system, judiciary system, and public services. The conclusion has been “improvement have been made, but efforts remain to be done “concerning France.

According to the 2013 Eurobarometer business survey on corruption, 50% of respondents

consider that corruption is widespread in public procurement managed by national authorities and 51% consider it widespread in public procurements managed by local authorities. In particular, French respondents

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