Master Slide

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Some dilemmas observed in public procurement
procedures
Goran Matešic L.L.B Chairman State Commission
for the Control of Public Procurement
Procedures Conference on "Public Procurement
Review Remedies SystemsDubrovnik 24-25 May 07
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REMEDIES SYSTEM (EU REQUIREMENTS)

• EC Treaty
• Directive 2004/18/EZ
• Remedies Directive 89/665 EEC

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EC TREATY AND THE CASE LAW OF THE ECJ

• EC Treaty
• Non - discrimination on grounds of nationality
  Article 12
• Free movement of goods Article 23-25 90-93
• Free movement of capital Article 56-59
• Free movement of persons, especially workers
  Article 39
• Right of establishment, free movement of
  services Article 43-55
• ECJ Case Law

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D I R E C T I V E 2004/18/EZ

• Rules of competition should guarantee flexibility
  and repect for principle of equal treatment
• Rules which should guarantee compliance with the
  principle of transparency
• Contracting authorities shall treat economic
  operators equally and non-discriminatorily and
  shall act in a transparent way

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R E M E D I E S D I R E C T I V E 89/665 EEC

• Main aims of the Directive
• effectiveness and rapidity Article 1 (1)
• no discrimination between undertakings claiming
  injury Article 1 (2)
• Legal protection is necessarily based on
  principles of effectiveness and rapidity
• No discrimination in legal protection as a
  consequence of Directive implementation in Member
  States legal systems
• A contrario individual public procurement rights
  should be equally protected in all Member States
  legal systems

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REMEDIES DIRECTIVE 89/665 EEC II

• Ensure that the review procedures are available
  establish detailed review procedure rules
  Article 1 (3)
• Ensure that the measures taken concerning review
  procedures include provision for the powers to
• Take interim measures
• Set aside or ensure setting aside of decisions
  taken unlawfully (including the removal of
  discriminatory specifications)
• Award damages to persons harmed by an
  infringement Article 2 (1)
• Ensure effective enforcement of decisions taken
  by bodies responsible for review procedures
  Article 2 (7)
• Written reasons for decisions made by non
  judicial body and ensure judicial review or
  review by the independent body (legally binding
  decisions) Article 2 (8)

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• Respecting principles of
• proportionality
• subsidiarity
• authonomy of national legislations

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• No discrimination in legal protection as a
  consequence of Directive implementation in Member
  States legal systems
• A contrario, individual public procurement rights
  should be equally protected in all Member States
  legal systems

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DIFFERENCES IN NATIONAL LEGISLATIONS DEALING
WITH LEGAL PROTECTION

• I COMPETENT REVIEW BODY
• a) Judicial body, Court
• a.a. Civil Court
• a.b. Administrative Court
• b) Quasi Judicial independent review body
• c) Combination

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DIFFERENCES IN NATIONAL LEGISLATIONS DEALING
WITH LEGAL PROTECTION

• II EFFICIENCY, SPEED, DURATION OF REVIEW
  PROCEDURE
• Court as a competent review body no time limits
  as a result of extension of principle of
  independence of judicial administration
• b) Quasi Judicial independent review body

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DIFFERENCES IN NATIONAL LEGISLATIONS DEALING
WITH LEGAL PROTECTION

• III LEGAL BOUNDARIES OF REVIEW BODY IN CONTROL
  PROCEDURE
• Right to Cassation of a decision (acceptance or
  denial of appeal demand),in this case accepted
  appeal results with annulment of award of
  contract and contracting authority has to repeat
  procedure
• Right to Revision except acceptance or denial
  review body is entitled to reach a new decision
  or awarding the contract.

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DIFFERENCES IN NATIONAL LEGISLATIONS DEALING
WITH LEGAL PROTECTION

• IV APPLICATION OF PROCEDURAL LAW
• Civil procedure with consequences of application
  of principles of a civil procedure such as
  inquisitory principles
• Administrative procedure with consequences of
  application of principles of a administrative
  procedure such as ex oficio principles
• Mixed procedure, procedure mixed of
  administrative and civil procedural law with
  subsidiary application of one of procedural law

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DIFFERENCES IN NATIONAL LEGISLATIONS DEALING
WITH LEGAL PROTECTION

• V INTERIM MEASURES, STAND STILL, SUSPPENSIVE
  EFFECT

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DIFFERENCES IN NATIONAL LEGISLATIONS DEALING
WITH LEGAL PROTECTION

• VI DAMAGES

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DIFFERENCES IN NATIONAL LEGISLATIONS DEALING
WITH LEGAL PROTECTION

• VII TIME LIMITS, DEADLINES

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DIFFERENCES IN NATIONAL LEGISLATIONS DEALING
WITH LEGAL PROTECTION

• VIII COSTS, FEES, DEPOSITS

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CONCLUSIONS

• 1. There are big differences in national
  legislations dealing with legal protections
• 2. All differences should be considered in
  accordance with principles of proportionality and
  subsidiarity
• 3. Whether the differences are discriminatory
  should be assessed case by case

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Thank you!

• Goran Matešic L.L.B
• Chairman
• State Commission for the Control of
• Public Procurement Procedures