Competitive tendering obligations beyond public procurement contracts

In the book chapter “Transparency obligations in the distribution of scarce public rights : on an expedition to sources and scopes” published in the book “Public procurement at a crossroads”, our analysis reveals that many sources of transparency obligations coexist and a trend towards ever greater coverage of the transparency obligations.  

Public contracts, domain concessions for carrying out economic activities on public land, licences to operate casinos, hunting licenses – these rights share the commonality of being scarce. Granted by public authorities, scarce rights such as these are in limited supply and cannot be granted to all interested economic actors.

For some of these rights, a clear legal framework prescribes whether and how to allocate them. For example, public procurement contracts and concessions must be awarded in accordance with national law implementing the EU Public Procurement Directives (Directive 2014/24/EU and Directive 2014/25/EU) and the EU Concessions Directive (Directive 2014/23/EU). In these contexts, contracting authorities and entities have a clear obligation of transparency – they are required to publish opportunities for obtaining public contracts and concessions through contract notices and to award these contracts following a competitive procedure.

Do authorities have an obligation of transparency in other cases involving scare rights not falling under a specific legal regime? Our public procurement experts Valentijn De Boe and Aude Van den Bussche explore the different legal sources of transparency obligations and their respective scopes in a chapter of a book in the series “Public procurement at a crossroads” (La commande publique à la croisée des chemins ~ Overheidsaankopen op een tweesprong) (2025), together with Michaël Eeckhout.

The chapter highlights the evolving legal landscape influenced by European Union law, particularly the EU Treaties Principles, state aid rules and the Services Directive (Directive 2006/123/EC). The chapter emphasizes the need for clear guidelines to ensure fair and transparent allocation processes, balancing the need for competition with the practicalities of public administration. The authors call for practical guidelines to help public authorities and market participants navigate these complex legal requirements effectively.

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