© OECD A joint initiative of the OECD and the European Union, principally financed by the EU ECJ case law on remedies Leading up to the ‘new’ Directives

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Issues l Timelines (especially standstill period) l Direct awards l Remedies outside the scope of the Directives

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Overview l C-111/97,EvoBus l C-81/98,Alcatel l C-470/99,Universale Bau l C-327/00,Santex l C-249/01,Hackermüller l C-230/02,Grossmann Air Services l C-26/03,Stadt Halle

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-111/97, EvoBus Austria l Facts: Austria failed to implement Directive 92/50/EEC. Therefore the competence (jurisdiction) to hear disputes regarding service contracts was not attributed to any court.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-111/97, EvoBus Austria l ECJ: The Court referred to C-54/96, Dorsch and held that it is for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-81/98, Alcatel l Facts: Austrian procurement law does not provide for a specific obligation for a contracting authority to make the award decision itself known to bidders. Contracts are concluded when the successful bidder receives a notice of acceptance by the contracting authority. The Federal Procurement Office is empowered to set aside unlawful decisions only before and until the contract is concluded. In practice, tenderers had no knowledge about award decisions. Other tenderers learned about contract in press and made applications for review 5-15 days later.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-81/98, Alcatel l ECJ: Article 2 (1) (b): Power to “set aside … decisions taken unlawfully, including …” to be defined widely: “the provision does not lay down any restrictions with regard to the nature and content of those decisions” Article 2 (6): effects of powers “on a contract concluded subsequent to its award, “ after the conclusion of a contract following its award…” The decision to award the contract must in all cases be open to review procedures prior to the conclusion of the contract. Confirmed in C-212/02, Commission v Austria

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-212/02, Commission v Austria l ECJ: All tenderers must be informed of the contract award decision prior to the conclusion of the contract, so that there is a genuine possibility of bringing an action. A reasonable period must elapse between the time when the award decision is communicated to unsuccessful tenderers and the conclusion of the contract, in order to make is possible for unsuccessful tenderers to have sufficient time to examine the validity of the award decision and in particular to apply for interim measures.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU After the ‘Austrian cases’: open questions: l How long should the standstill period be? l What are the consequences for the contracting authorities of not respecting the standstill period? l Are there any exceptions to the standstill period?

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Standstill periods in days l Austria 7 /14 Bulgaria 10 l Czech 15Denmark 7-10 l Estonia 14 Finland 21/28 l France 10Germany 14 l Hungary 8Ireland 14 l Italy 30Lithuania 10 l Luxembourg 15Malta 10 l Netherlands 15Poland 7 l Portugal 10 Romania 15 l Slovakia 14Slovenia20 l Sweden 10.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-470/99, Universale Bau l Facts: (State of) Vienna procurement rules foresaw limitation periods within which certain allegedly unlawful decisions could no longer be challenged. After the limitation period had passed, such decisions could no longer be challenged. Remedies Directive does not provide for any limitation periods.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-470/99, Universale Bau l ECJ: In absence of Community rules, Member States are free to provide procedural rules if coherent with fundamental principles of the EC Treaty. 2 week limitation period in principle consistent with principle of effectiveness and equivalence (C- 231/96), time limits need to be appropriate.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-327/00, Santex l Facts: Italian law provides that an invitation to tender or clauses thereof must be challenged within the limitation period of 60 days. When that period has expired a challenge is no longer possible. Bidder did not contend specific (potentially discriminatory) clause because contracting authority led him to believe that disputed clause would be interpreted in a non-discriminatory manner. After time limitation period had passed, contracting authority excluded bidder from tender procedure on the basis of the potentially discriminatory clause.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-327/00, Santex l ECJ: (Citing Universale Bau), found 60 days period to be reasonable but held that the changing conduct of the contracting authority had rendered the exercise of the rights conferred on tenderer excessively difficult. National court must interpret domestic law, as far as […] possible, in a way which accords with the requirements of EC law or must even, if necessary, refrain from applying the limitation-period.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-249/01, Hackermüller l Facts/problem: May a bidder who has not been ‘eliminated’ by the contracting authority, be excluded from the review procedure by a decision of the review body?

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-249/01, Hackermüller l ECJ: Elimination of the bid before making the selection is a decision against which it must be possible to seek review. Review body must afford tenderer right to challenge the validity of the exclusion in the review procedure, at the end of which, however, the review body may reach the conclusion that the bid should have been eliminated at the outset and that his application is therefore dismissed, as he neither has been nor risks being harmed by the alleged infringement.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-230/02, Grossmann Air Services l Facts: G submitted a tender for the provision of non-scheduled air transport services for the Austrian government. Government annulled first invitation to tender, since only one offer remained after the examination of bids. In the second tender G did not submit an offer but challenged the award decision on the ground that the tender documents had been tailored from the outset to the then successful tenderer Lauda Air.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-230/02, Grossmann Air Services l ECJ: It must be possible for an undertaking to seek review of discriminatory specifications before submitting a bid and without waiting for the contract award procedure to be terminated.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-26/03, Stadt Halle l Facts/problems: Is the remedies Directive applicable to decisions taken outside the formal award procedure and prior to a formal call for tenders? –Decision to award contract outside the formal procedure. –Decision not to initiate award procedure.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU C-26/03, Stadt Halle l Broad meaning of the concept of ‘decision’: Any act of a contracting authority adopted in relation to public contract capable of producing legal effects regardless of whether that act is adopted outside or as part of a formal procedure. Not subject to review are acts which constitute a preliminary study of the market or which are purely preparatory.