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Public Procurement Review and Remedies in the Member States of the EU. Prof. Dr. Martin Trybus Birmingham Law School. « Public Procurement Review and Remedies » Ankara 26-27 February 2008. What? + Why?. What : Study Review and remedies systems 27 Member States (24 returns)

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public procurement review and remedies in the member states of the eu

Public Procurement Review and Remedies in the Member States of the EU

Prof. Dr. Martin Trybus

Birmingham Law School

« Public Procurement Review and Remedies »Ankara 26-27 February 2008

what why
What? + Why?
  • What: Study
    • Review and remedies systems
    • 27 Member States (24 returns)
    • Review bodies, available remedies, review culture
  • Why: Better understanding + knowledge may help + inspire Sigma-partner countries in reforming or setting up.
ec requirements
EC requirements
  • EC Remedies Directives:
    • Rapid and effective remedies.
    • Independent review bodies.
    • Judicial review in last instance.
    • Interim relief.
  • European Court of Justice case law.
    • Alcatel
    • Stadt Halle
not in eu law
Not in EU law:
  • Administrative or civil judicial review?
  • Composition of review bodies?
  • Arbitration?
  • Number and size of review bodies?
  • Calculation of damages?
  • Procedural law?
what did we want to know
What did we want to know?
  • Institutional framework.
    • Courts and review bodies…
  • Legal framework.
    • Procedural law, remedies…
  • Review and remedies culture.
    • Legal education, attitudes…
  • Operation of the system.
    • Number of cases, time, outcomes…
systems of review
Systems of review
  • Single system of review.
    • 1 type of review body (1-3 instances)
  • Dual system of review.
    • Separated by conclusion of contract.
    • Separated by public private nature of defendant.
    • 1-3 instances each.
    • Specialised/general review bodies.
    • Specialised chambers in ordinary courts.
review bodies
Review bodies
  • Ordinary (civil) courts
    • Germany, the Netherlands, United Kingdom
  • Administrative courts
    • France, Portugal, Estonia, Sweden
  • Specialised review bodies
    • Austria, Bulgaria, Denmark, Slovak Republic
  • Set aside of individual public procurement decisions:
    • Contract notice, qualification, shortlist …
  • Set aside of the contract award decision
  • Annulment of the concluded contract
  • Damages
  • (Interim measures)
single review systems
Single review systems
  • All remedies can be awarded by one review body (ordinary, administrative, specialised)
    • Specialised public procurement review body: Bulgaria, Denmark, Latvia, Malta, Slovak Republic
    • General court: Ireland, Lithuania, the Netherlands, Portugal, United Kingdom
dual review systems
Dual review systems

Separation of review body before and after the conclusion of the contract

Separation of review body according to public or private nature of the contracting entity

  • Austria, Belgium, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Estonia, Hungary, Luxembourg, Poland, Romania, Sweden
specialised public procurement review bodies
Specialised public procurement review bodies
  • Austria: Federal Public Procurement Office
  • Bulgaria: Commission on the Protection of Competition
  • Cyprus: Tenders Review Authority
  • Czech: Office for the Protection of Competition
  • Denmark: Complaints Board for Public Procurement
  • Estonia: Public Procurement Commission
  • Germany: 17 Public Procurement Chambers
  • Hungary: Public Procurement Council
  • Latvia: Procurement Monitoring Bureau
  • Malta: Appeals Board of the Department of Contracts
  • Poland: Public Procurement Office
  • Romania: National Council for Solving Legal Disputes
  • Slovakia: Office of Public Procurement
  • Slovenia: National Review Commission for the Review of Public Procurement Award Procedures
appeals a 2 nd instance
Appeals: a 2nd instance?
  • No appeal for decisions before contract conclusion:
    • Belgium, Malta, Slovenia
  • Appeal for decisions before the conclusion of the contract:
    • Civil courts of appeal: Austria, Czech, Germany, Luxembourg, Poland, Sweden
    • Supreme courts: Cyprus, Denmark, Ireland
    • Courts of appeal: in Estonia, Lithuania, the Netherlands, United Kingdom
    • Supreme Administrative Court: Austria, Bulgaria, Finland, Portugal
    • Constitutional Court: Austria
    • Second instanceadministrative courts: France, Sweden
    • Court of law as a second (appeal) instance: of appeal: Austria, Bulgaria, Cyprus, Czech, Denmark, Estonia, Germany, Hungary, Latvia, Luxembourg, Poland, Romania, Slovakia
    • Lower instance ordinary courts: Hungary, Poland.
    • Czech + Poland: Chairpersons of the Office for the Protection of Competition and Public Procurement Office respectively
last instance review bodies
Last instance review bodies
  • Court of law (before + after conclusion)
    • Austria, Belgium, Bulgaria, Cyprus, Czech, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovakia, Sweden, United Kingdom
  • Special review body (before conclusion)
    • Malta + Slovenia
alternative dispute settlement
Alternative dispute settlement
  • Arbitration
  • Attestation + conciliation
  • Ombudsman
    • Luxembourg, the Netherlands
  • German `Public Procurement Test Points`
  • Danish Competition Authority
  • Luxembourg Tender Commission
available remedies
Available remedies
  • Set aside of procurement decisions.
  • Set aside of award decisions. Alcatel!
  • Annulment of concluded contract.
  • Interim measures.
  • Damages.
  • Set aside of an individual public procurement decision
  • Annulment of the contract conclusion
  • Damages
  • Interim measures
set aside
Set aside
  • Individual award decisions to be set aside:
    • an unlawful contract notice
    • discriminatoryspecifications or tender documents
    • an illegalqualification decision
    • illegalshort-listing decisions
    • contract award decision
    • order the removal or amendment of specifications and other tender documents or the
    • order recommencement of the procurement procedure in total or from a specific point in time.
  • Legal base: public procurement law, civil law, administrative law, case law
annulment of the contract
Annulment of the contract
  • Only under strict requirements, if at all:
    • Only by a court of law
    • Contract would establish illegal conditions (Lithuania)
    • Fraud or illegal circumstances (Sweden, UK)
    • Contract against ordre public (Netherlands)
  • Austria: possible but never happened
  • Belgium: can take 5 years
  • Conclusion of a contract during the standstill period
standstill periods in days
Standstill periods in days
  • Austria 7 /14 Bulgaria 10
  • Czech 15 Denmark 7-10
  • Estonia 14 Finland 21/28
  • France 10 Germany 14
  • Hungary 8 Ireland 14
  • Italy 30 Lithuania 10
  • Luxembourg 15 Malta 10
  • Netherlands 15 Poland 7
  • Portugal 10 Romania 15
  • Slovakia 14 Slovenia 20
  • Sweden 10.
suspensive effect
Suspensive effect
  • Automatic suspensive effect
    • Estonia,Germany, Poland, Romania, Slovenia
  • Suspensive effect as an interim measure
    • Others
  • Reverse suspensive effect
    • Germany, Slovenia
interim measures
Interim measures
  • Suspected or likely breach of law
  • Well-founded interest of the applicant
  • Urgency
  • The claimant has suffered a loss
    • Pecuniary or otherwise
  • Breach of the law through the contracting authority or entity
  • Causality
    • cause and effect – meaning the loss must be caused by the breach of law
  • Accountability (“guilt”)
  • Additional requirements apply to individual jurisdictions
    • For example, the claimant has to prove that he or she would have had an actual chance of winning the contract if the procedure had been conducted lawfully in Denmark, Finland, Germany, and France
  • Tender costs (damnum emergens)
    • can be reimbursed in all Member States
  • Lost profits (lucrum cessans).
    • Denmark, Finland, Germany, Hungary, Latvia, Lithuania, the Netherlands, Portugal, and the United Kingdom lost profits can be awarded,
    • in France if the claimant had a serious chance of winning the contract (more than just a chance).
    • Usually the tenderer has to prove that he or she would have had a real chance of winning the contract that was affected by the unlawful decision.
scope of the review system
Scope of the review system
  • Thresholds of the EC Directives
    • No difference: Austria, Cyprus, Estonia, France, Hungary, Lithuania, the Netherlands, Portugal, Romania, Slovenia, Sweden
    • Only above: Germany, Ireland, United Kingdom
    • Differences
  • Utilities
    • No difference: Bulgaria, Estonia, Lithuania, Netherlands
    • Different review bodies: France, Luxembourg
    • Other differences: Latvia, Poland
procedural law
Procedural law
  • Legal standing
  • Time limits
  • Publication of judgments
  • Costs, fees, and deposits
  • Model forms
  • Confidentiality
  • Involvement of experts
  • Free: France, Ireland, Latvia (PMB) Luxembourg, Romania (NCSD), Sweden
  • Flat fees: Denmark (€500 Claims Board), Lithuania (€30), Finland (€204)
  • Percentage of contract value: 3% in Estonia, 5% in the State High Courts of Germany, 1% in Czech, or 1% for an injunction in Bulgaria
  • Scale of fees ranging from €26 to 4,563 (Netherlands) and €6-320 (Estonia) depending on the value of the contract