EU consultation submission - abolishing thresholds

My second entry into this series on my submission to the consultation on the revision of the procurement Directives is on thresholds and why we should abolish them:

7. The current system of financial thresholds is illogical as it puts a floor into the single market: contracts above certain values are always considered as part of the single market, whereas those below are presumed as not. It does not help that this original sin exists as a measure of openness to third-countries based on commitments made to the GATT Tokyo Round, the Government Procurement Agreement and bilateral trade agreements covering public procurement. In short, the size of our public procurement single market is determined not by the internal dynamics of the Union but external ones instead. It makes no sense as based on the best available data, it means 43% of public contracts in the EU are automatically excluded from the single market.
8. Thresholds are also unworkable due to the applicable CJEU case law. Since Telaustria we have multiple judgments from the Court where it has established the certain cross-border interest test for triggering the application of the general principles. The problem with said test is that it is not a test at all but simply a case-by-case guess of a prospective contract having certain cross-border or not, something that can only be reliably established...after the fact. This means that any given contracting authority does not have a reliable test to deploy before launching the contract and is instead left with guessing to the best of its abilities if a contract is subject to the principles or not. It is arguable as well that this means that fewer contracts that should be considered as part of the single market are treated as such since there is no incentive to do so either. In fact, the incentive is not to consider contracts to have cross-border interest and simply subject it to national rules irrespective of value.
9. By creating an artificial barrier in the single market based solely on contract value thresholds create the perverse incentive for contracting authorities to manipulate contract values to stay below thresholds. It is consensual in the literature that there is bunching of contracts just below the thresholds to avoid application of EU public procurement rules, indicating that the practice of contract splitting is still alive and - unfortunately - well. This is not a 'victimless crime' since contracts above thresholds receive more bids and achieve lower prices.
10. The current system particularly disadvantages SMEs and startups wanting to operate in the single market by effectively shutting out most contracts that they might be interested in to only national suppliers.
11. Furthermore, abolishing thresholds would also improve procurement data capture since member States have already deployed eForms and contracts now below-thresholds would now be subject to the same reporting obligations as the contracts above.
12. Abolishing thresholds should not mean taking the practices developed for above-thresholds contracts and simply applying them to smaller ones without consideration for the transaction and opportunity costs they entail. To this end, various member States have developed local practices that should be assessed and evaluated to consider on how best to regulate them. It is surely possible in 2025 to design digital first or digital native simplified procedures for these lower value contracts.
13. An alternative to fully abolishing the thresholds would be to establish a de minimis exemption similar to how State Aid operates. While, some may argue that the current thresholds already work as such this is not entirely the case due to Telaustria and subsequent judgments. In addition, arguing that the current thresholds work as a de minimis exemption when a significant proportion of contracts are excluded from the single market looks like a contradiction in terms.
14. A de minimis exemption should really be that: a very modest value under which no EU public procurement rules would be applicable, excluding them as well from the certain cross-border interest test or the general principles.