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

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

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

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  1. Some dilemmas observed in public procurement procedures Goran Matešić L.L.B Chairman State Commission for the Control of Public Procurement Procedures Conference on "Public Procurement Review & Remedies Systems“Dubrovnik 24-25 May 07

  2. REMEDIES SYSTEM (EU REQUIREMENTS) • EC Treaty • Directive 2004/18/EZ • Remedies Directive 89/665 EEC

  3. 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

  4. 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

  5. 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

  6. 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)

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

  8. 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

  9. 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

  10. 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

  11. 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.

  12. 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

  13. DIFFERENCES IN NATIONAL LEGISLATIONS DEALING WITH LEGAL PROTECTION V INTERIM MEASURES, STAND STILL, SUSPPENSIVE EFFECT

  14. DIFFERENCES IN NATIONAL LEGISLATIONS DEALING WITH LEGAL PROTECTION VI DAMAGES

  15. DIFFERENCES IN NATIONAL LEGISLATIONS DEALING WITH LEGAL PROTECTION VII TIME LIMITS, DEADLINES

  16. DIFFERENCES IN NATIONAL LEGISLATIONS DEALING WITH LEGAL PROTECTION VIII COSTS, FEES, DEPOSITS

  17. 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

  18. Thank you! Goran Matešić L.L.B Chairman State Commission for the Control of Public Procurement Procedures

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