Legal protection below the EC thresholds

1
Legal protection below the EC
thresholds

• Martin Trybus
• (from 1st June University of Birmingham)

2
Background

• Directives (incl. on review) do not apply below
  certain thresholds.
• The larger part of public contracts are below the
  thresholds.
• Only the EC Treaty applies below the thresholds.
• Commission focus on procurement below the
  thresholds.
• Review below thresholds?

3
C-275/98, Unitron Scandinavia

• Facts A contract for the supply of eartags
  procured by a private company for a procuring
  authority (was granted exclusive rights) was
  awarded without following the procedures of the
  Directives.
• Applicant Should follow Directive by analogy.

4
C-275/98, Unitron Scandinavia

• ECJ No requirement to follow the Directive but
  the only requirement must comply with the
  principle of non-discrimination on grounds of
  nationality.
• It should be noted, however, that the principle
  of non-discrimination on grounds of nationality
  cannot be interpreted restrictively. It implies,
  in particular, an obligation of transparency in
  order to enable the contracting authority to
  satisfy itself that it has been complied with.

5
C-324/98, Telaustria Verlags GmbH and
Telefonadress GmbH v Telekom Austria AG
(Teleaustria)

• Facts proceedings between Telaustria and
  Telefonadress, on the one hand, and Telekom
  Austria, on the other, concerning the conclusion
  by Telekom Austria of a concession contract with
  Herold Business Data AG for the production and
  publication of printed and electronically
  accessible lists of telephone subscribers
  (telephone directories).
• Not contract for pecuniary interest/services
  concession.

6
C-324/98, Telaustria Verlags GmbH and
Telefonadress GmbH v Telekom Austria AG
(Teleaustria)

• Notwithstanding the fact that such contracts
  are excluded from the scope of Directive 93/38,
  the contracting entities concluding them are,
  none the less, bound to comply with the
  fundamental rules of the Treaty, in general, and
  the principle of non-discrimination on the ground
  of nationality, in particular, that principle
  implying, in particular, an obligation of
  transparency in order to enable the contracting
  authority to satisfy itself that the principle
  has been complied with.
• That obligation of transparency which is imposed
  on the contracting authority consists in
  ensuring, for the benefit of any potential
  tenderer, a degree of advertising sufficient to
  enable the services market to be opened up to
  competition and the impartiality of procurement
  procedures to be reviewed.

7
Legal protection below EC thresholds

• System applies equally to contracts above and
  below the thresholds.
• Cyprus, Estonia, France, Hungary, Lithuania, the
  Netherlands, Portugal, Romania, Slovenia and
  Sweden.
• System applies only to contracts above the
  thresholds.
• Germany, Ireland and the United Kingdom.

8
Legal protection below EC thresholds

• Substantial differences of the review and
  remedies system with regard to contracts below
  the thresholds.
• Czech Republic additional requirements have to
  be fulfilled with regard to certain remedies.
• Denmark in some situations there is a different
  legal foundation for remedies.
• Finland entirely different path for judicial
  review.

9
Conclusions

• Requirements below thresholds
• Non-discrimination on grounds of nationality and
  transparency.
• Some form of review.
• Solutions
• Apply Directives (safe but burdensome).
• Separate system (less safe but effective)
• Ideas
• Differentiation low value contracts?
• Differentiation number of instances?

10
Thank you!

• Martin Trybus University
  of Birmingham School of Law
  Edgbaston
  Birmingham B15 2TT United Kingdom
  Tel [phone]
  3637Fax [phone] M.Trybus_at_bham.ac.uk