Non-observance of General Principles in Public Procurement in Light of Recent Case Law

Abstract

Treaty on Functioning of EU does not offer any specific provisions relating to public procurement. However, it contains general principles that need to be obeyed. In particular, the principle of transparency, non-discrimination, equal treatment and proportionality. When these general principles expressed in the Treaty on the Functioning of the EU and in public procurement directives are violated, it happens in an indirect manner, which at first glance is not a flagrant violation of any of the provisions of the Treaty. The paper analyses recent case law of the Court of Justice of the EU. It further studies the approach of the Czech administrative courts and compares it with the one of Court of Justice of the EU. Results of the analysis are synthesized and deviations found in the comparative part are exposed. The paper also summarizes the most common causes of violation of the general principles which render public contracts invalid.