© OECD A joint initiative of the OECD and the European Union, principally financed by 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 February 2008

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU What? + Why? l What: Study Review and remedies systems 27 Member States (24 returns) Review bodies, available remedies, review culture l Why: Better understanding + knowledge may help + inspire Sigma-partner countries in reforming or setting up.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU EC requirements l EC Remedies Directives: Rapid and effective remedies. Independent review bodies. Judicial review in last instance. Interim relief. l European Court of Justice case law. Alcatel Stadt Halle

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Not in EU law: l Administrative or civil judicial review? l Composition of review bodies? l Arbitration? l Number and size of review bodies? l Calculation of damages? l Procedural law?

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU What did we want to know? l Institutional framework. Courts and review bodies… l Legal framework. Procedural law, remedies… l Review and remedies culture. Legal education, attitudes… l Operation of the system. Number of cases, time, outcomes…

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Systems of review l Single system of review. 1 type of review body (1-3 instances) l 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.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Review bodies l Ordinary (civil) courts Germany, the Netherlands, United Kingdom l Administrative courts France, Portugal, Estonia, Sweden l Specialised review bodies Austria, Bulgaria, Denmark, Slovak Republic

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Remedies l Set aside of individual public procurement decisions: Contract notice, qualification, shortlist … l Set aside of the contract award decision l Annulment of the concluded contract l Damages l (Interim measures)

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Single review systems l 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

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU 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

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Specialised public procurement review bodies l Austria: Federal Public Procurement Office l Bulgaria: Commission on the Protection of Competition l Cyprus: Tenders Review Authority l Czech: Office for the Protection of Competition l Denmark: Complaints Board for Public Procurement l Estonia: Public Procurement Commission l Germany: 17 Public Procurement Chambers l Hungary: Public Procurement Council l Latvia: Procurement Monitoring Bureau l Malta: Appeals Board of the Department of Contracts l Poland: Public Procurement Office l Romania: National Council for Solving Legal Disputes l Slovakia: Office of Public Procurement l Slovenia: National Review Commission for the Review of Public Procurement Award Procedures

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Appeals: a 2 nd instance? l No appeal for decisions before contract conclusion: Belgium, Malta, Slovenia l 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 instance administrative 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

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Last instance review bodies l 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 l Special review body (before conclusion) Malta + Slovenia

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Alternative dispute settlement l Arbitration l Attestation + conciliation l Ombudsman Luxembourg, the Netherlands l German `Public Procurement Test Points` l Danish Competition Authority l Luxembourg Tender Commission

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Available remedies l Set aside of procurement decisions. l Set aside of award decisions. Alcatel! l Annulment of concluded contract. l Interim measures. l Damages.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Remedies l Set aside of an individual public procurement decision l Annulment of the contract conclusion l Damages l Interim measures

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Set aside l Individual award decisions to be set aside: an unlawful contract notice discriminatory specifications or tender documents an illegal qualification decision illegal short-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. l Legal base: public procurement law, civil law, administrative law, case law

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Annulment of the contract l 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) l Austria: possible but never happened l Belgium: can take 5 years l Conclusion of a contract during 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 Suspensive effect l Automatic suspensive effect Estonia,Germany, Poland, Romania, Slovenia l Suspensive effect as an interim measure Others l Reverse suspensive effect Germany, Slovenia

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Interim measures l Suspected or likely breach of law l Well-founded interest of the applicant l Urgency

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Damages l The claimant has suffered a loss Pecuniary or otherwise l Breach of the law through the contracting authority or entity l Causality cause and effect – meaning the loss must be caused by the breach of law l Accountability (“guilt”) l 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

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Damages l Tender costs (damnum emergens) can be reimbursed in all Member States l 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.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Scope of the review system l 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 l Utilities No difference: Bulgaria, Estonia, Lithuania, Netherlands Different review bodies: France, Luxembourg Other differences : Latvia, Poland

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Procedural law l Legal standing l Time limits l Publication of judgments l Costs, fees, and deposits l Model forms l Confidentiality l Involvement of experts

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Costs l Free: France, Ireland, Latvia (PMB) Luxembourg, Romania (NCSD), Sweden l Flat fees: Denmark (€500 Claims Board), Lithuania (€30), Finland (€204) l 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 l Scale of fees ranging from €26 to 4,563 (Netherlands) and €6-320 (Estonia) depending on the value of the contract