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I. Introduction
The public sector integration in the European Union has been an integral part to the concept of the internal market. It provides for economic and policy justifications for establishing a genuinely competitive environment within which both pri- vate and public markets may function and inter- State trade patterns flourish.
The economic approach to the regulation of the public sector aims at the integration of public mar- kets across the European Union. Through the prin- ciples of transparency non-discrimination and objectivity in the award of public contracts which pursue public services, it is envisaged that the regu- latory system will bring about competitiveness in the relevant product and geographical markets, will increase import penetration of products and serv- ices destined for the public sector, will enhance the tradability of public contracts across the common market, will result in significant price convergence and finally will be the catalyst for the needed ratio- nalisation and industrial restructuring of the Euro- pean industrial base.
The regulation of public sector reflects the wish of European institutions to create seamless intra- community trade patterns between the public and private sectors. The influence of neo-classical eco- nomic theories on public sector regulation has taken the relevant regime through the paces of the liberalization of public markets within the Euro- pean Union. Anti-trust has played a seemingly important role in determining the necessary com- petitive conditions for the supply side to service the public sector. However, we have seen the emer- gence of a sui generis market place where the mere existence and functioning of anti-trust is not suffi- cient to achieve the envisaged objectives. Public markets require a positive regulatory approach in order to enhance market access. Whereas anti-trust and the neo-classical approach to economic integra- tion depend heavily on price competition, public procurement regulation requires a system which primarily safeguards market access. Such a regula- tory system could be described as public competi- tion law and represents the first departure from the stricto sensu neo-classical perspective of public pro- curement. A policy orientation has emerged mainly through the jurisprudential approach of the regime and the willingness of the Court of Justice of the European Union to expand on the element of inher- ent flexibility.
The neo-classical versus the...