Märkbar påverkan på upphandlingsrätten - Betydelsen av överträdelser av förbudet mot konkurrensbegränsande avtal ur en upphandlingsrättslig kontext

Sammanfattning: One of the cornerstones of the cooperation between the states within the European Union is the common market. This cornerstone is maintained through the competition and public procurement regulation. There is however a question of how the two regulations interact with each other. There is an explicit possibility to exclude an economic operator if there is sufficient plausible indications to conclude that the economic operator has entered into agreements with other operators aimed at distorting competition. To conclude that there is an violation of competition law it must be determined that the agreement has an anti-competitive object or result. As competition law sets higher demands on the evidence used to prove a violation then procurement law, the demands set out by competition law should prevail. Otherwise there is a risk that an economic operator is excluded for actions that it hasn’t’ been part of. Something that would be against the presumption of innocence. There is also a difference when it comes to the possibility to claim responsibility from an economic operator’s representatives. According to competition law a representative can be prohibited from carrying on business, any similar possibilities doesn’t exist in the regulation of public procurement. This is a problem since the procurement regulation can be circumvented by transferring the business to a new economic operator. To seal this gap there should be an explicit possibility to claim responsibility from an economic operator’s representatives. A possibility to exclude an economic operator from the procurement process, if the operator’s representatives previously committed violations of the competition regulation, without going so far as prohibiting the representative from carrying out business. Lastly there is one area where the procurement- and competition regulations shouldn’t effect each other. The possibility to avoid exclusion or damages. Both Both systems has possibilities to avoid sanctions by cooperating with the authorities. That an economic operator fulfils the requirements to take part on a leniency program doesn’t automatically mean that the operator should avoid exclusion from the procurement process. The assessment whether an operator should avoid sanctions or not must be determined without taking into account of how the operators actions would be judged.