Remedies in the field of public procurement : various French experiences

1
Remedies in the field of public procurement
various French experiences

• Marc Poulain
• Seconded national expert
• European Commission

2
Basic elements on the French review system

• Priority given to a judicial review
• Public procurement contracts divided in two
  categories contracts under administrative law
  and contracts under civil law
• Therefore, two branchs of jurisdiction competents

3
Stages in the remedies development

• 1st stage classical review procedures applied
  to public procurement
• 2nd stage efficient precontractual review
  procedure
• 3rd stage an enhanced review system

4
1rst stage classical review procedures applied
to public procurement

• Challenge of decisions relating to the award
  procedure of public contracts
• Claim for financial compensation by third parties
• disputes between contracting bodies and private
  contractors over concluded contracts

5
Challenge of decisions relating to award
procedure (1)

• possibility to challenge any act of award
  procedure
• ( contract notices, tender documentation,
  rejection decisions, award decision)
• Possibility to invoke any legal ground relating
  to the procedure breachs of transparency and
  competition requirements but also lack of legal
  competence, obvious assessment mistakes
• Possibility to obtain the annullment of the
  entire procedure

6
Challenge of decisions related to the award
procedure

• Drawbacks
• The ruling may intervene years after the
  contracts conclusion
• Enforcement issue the annullment of award
  procedure does not lead automatically to the
  contracts cancellation

7
Claim for compensation by a third party

• An economic operator may ask for the compensation
  of financial damages caused by an illegal
  rejection
• The compensation may cover costs for
  participating to the procedure but also financial
  losses suffered from not obtaining the contract

8
disputes over concluded contracts

• Parties may request the cancellation of
  contractual links ex tunc ( by invoking any legal
  ground)
• Parties may request financial compensation for
  contract breaches or payment of performances
• Third parties cannot directly challenge a
  contract already concluded

9
2nd step an efficient precontractual review
 precontractual summary proceeding 

• Implementation of article 2 of directives
  89/665/EEC and 92/13/EEC
• Wide scope of application (public contracts and
  concessions)
• Summary proceeding

10
Summary proceeding

• A single judge
• De facto a short time-limit for returning a
  ruling (21 days from the day the judge has
  ordered the suspension of conclusion)

11
Wide competences devoted to the judge

• The judge may resort to all competences listed in
  article 2 (suspension, annulment, order to modify
  any act related to the procedure)
• The judge is not bound by the plaintiffs initial
  claim ( may rule ultra petita )

12
Global balance (1)

• Positive aspects
• Precontractual summary proceeding has become the
  most popular proceeding ( about 1200 cases per
  year nationwide)
• Precontractual review has imposed a better
  compliance with transparency and competition
  requirements

13
Global balance (2)

• Drawbacks
• A use aimed to block award procedures
• Lack of sanction in case of breach of suspension
  despite introduction of standstill period

14
3rd step an enhanced review system

• Implementation of directive 2007/66/EC
• An upgraded and more focused precontractual
  review
• An review of contract based on the experience of
  the precontractual summary proceeding

15
The new legal framework

• Ordinance n2009-515 of the 7th may 2009
• http//www.legifrance.gouv.fr/jopdf/common/jo_pdf.
  jsp?numJO0dateJO20090508numTexte10pageDebut
  07796pageFin07800
• To be complemented by implementing measures

16
An enhanced precontractual review

• A better definition of scope of application (
  national choice by legislator)
• A more focused access to the judge (according to
  case-law)
• Automatic suspension untill the judge has
  returned a ruling ( imposed by directive)
• A sufficient time-limit for returning a decision
  ( imposed by directive)

17
A review of contract based on the model of
precontractual proceeding

• Summary proceeding
• Review limited to requirements set by directives
• Meaning of uneffectiveness
• Introduction of financial sanctions
• a wide discretion left to the judge

18
A summary proceeding

• In order to favour efficient and quick review
• A single judge
• A short time-limit for returning a ruling ( draft
  decree provides for a month)
• The draft decree provides for no appeal ( only
  review of legal aspects) as for precontractual
  review proceeding

19
A review limited to requirements set by directive

• Scope of application more extended proceeding
  available for public contracts and concessions
• Cases for mandatory cancellation limited to the
  one listed in directive
• illegal direct award,
• combined breachs of transparency and
  competitition requirements and time limits
  provided by directive 2007/66/EC,
• non compliance with award procedure foreseen for
  contracts based on framework agreements or
  dynamic purchasing systems)
• No additional sanction than the one provided for
  by directive
• No possibility to lodge a claim for compensation

20
Thank you for listening

• For further information
• Marc.poulain_at_ec.europa.eu
• French PPN contact points

21
The choice of a complete cancellation of the
contract

• The notion of uneffectiveness has been
  implemented by a cancellation ex tunc, in order
  to address all cases (for instance contracts with
  an instant performance) and to enjoy a full set
  of alternative sanctions

22
Introduction of Financial sanctions

• Alternative sanctions are
• Financial penalties up to 20 of the total
  amount of the contract
• Shortening of the duration of the contract

23
Wide discretion left to the judge

• The judge may opt between alternative sanctions
• In compliance of the objective of deterence and
  proportionnality, the judge is free to set the
  amount of financial penalties