Evaluation of the Remedies Directives by the European Commission and the recent case law of the EU Court of Justice regarding public procurement remedies

Regional Conference for Public Procurement Review Bodies in EU Enlargement Countries, 9-10 June 2016, Ohrid

Evaluation of the Remedies Directives carried out by the EC "No later than 20 December 2012, the Commission shall

review the implementation of this Directive and report to the European Parliament and to the Council on its effectiveness, and in particular on the effectiveness of alternative penalties and time limits".

Article 4a of Directive 89/665/EEC and Article 12a of Directive 92/13/EEC, both as

amended by Directive 2007/66/EC REFIT evaluation - the European Commission's Regulatory

Fitness and Performance programme launched in December 2012 - Communication "EU Regulatory Fitness", COM(2012)746

REFIT evaluation criteria

Are the Remedies Directives as amended by 2007/66/EC: Effective? Efficient? Relevant? Coherent with other policies? What is their added value?

What has been done so far? The Study "Economic efficiency and legal effectiveness of review and

remedies procedures for public contracts", available on the Commission's website

Report: http://ec.europa.eu/DocsRoom/documents/10087/attachments/1/translations/en/renditions/native

Country fiches: http://ec.europa.eu/DocsRoom/documents/10087/attachments/3/translations/en/renditions/native

A public consultation on remedies between 24.4.2015 and 20.7.2015 which yielded 170 responses coming from all EU Member States

What has been done so far?

Targeted close audience consultations (first instance specialised administrative review bodies, judges, lawyers, experts, Member States)

Review of national legislations, academic literature and case law

Difficulties encountered during the evaluation

Data gathering: in most Member States the information on the national remedies systems is not collected in a structured manner and is rarely used for policy making purposes

Distinguishing factors that are directly associated with the Remedies Directives from national procedural rules that go beyond the requirements of the Directives

Reactions of respondents Widespread stakeholders’ positive perceptions of the

relevance of the Remedies Directives and of their impact in improving the openness and transparency of public procurement as well as in making public procurement rules more compelling for the contracting authorities/entities

The most relevant provisions of the Remedies Directives:

automatic debrief and standstill period

Notice for voluntary ex ante transparency and alternative penalties perceived as less relevant BUT they still contribute to the Remedies Directives' "deterrence effect"

Some data

Differences between Member States in:

the length of procedures

the number of cases

fees and litigation costs

Single Market Strategy for Europe

Communication from the Commission Upgrading the Single Market: more opportunities for people and business, COM(2015) 550

Commission Staff Working Document A Single Market Strategy for Europe - Analysis and Evidence, SWD/2015/0202

Single Market Strategy for Europe

The Commission will encourage first instance review bodies to cooperate and to network to improve the exchange of information and best practice.

Particular attention will be paid to the strengthening of the specialised first instance administrative review bodies.

The Commission will also improve the monitoring of effectiveness of the national review systems through regular assessment, including through the Single Market Scoreboard.

Recent cases on court fees and other financial requirements in public procurement litigation

• Judgment of the Court of 6 October 2015 in case C-61/14 Orizzonte Salute

• Joint cases C‑439/14 and C‑488/14 Star Storage, Max Boegl România and Construcții Napoca - pending, opinion of AG Sharpston of 28 April 2016

• Order of the Court of 7 April 2016 in case • C-495/14 Tita

Judgment of the Court in case C-61/14 Orizzonte Salute

• Two issues analysed by the Court:

• (i) the amounts of the standard fee to be paid for bringing an action in administrative judicial proceedings relating to public procurement:

• EUR 2 000 for contracts with a value equal to or less than EUR 200 000• EUR 4 000 for contracts with a value between EUR 200 000 and EUR 1

000 000• EUR 6 000 for contracts with a value exceeding EUR 1 000 000

• (ii) cases of a cumulation of such fees paid within the same administrative judicial proceedings relating to public procurement.

Judgment of the Court in case C-61/14 Orizzonte Salute

• On the amounts:

• The court fees to be paid for bringing an action in administrative proceedings relating to public procurement, which do not exceed 2% of the value of the contract concerned, are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU public procurement law (paragraph 58 of the judgment).

• Article 1 of [Directive 89/665/EEC], and the principles of equivalence and effectiveness must be interpreted as not precluding national legislation which requires the payment of court fees such as the standard fee at issue in the main proceedings when an action relating to public procurement is brought before administrative courts.

Judgment of the Court in case C-61/14 Orizzonte Salute

• On the cumulation of fees:

• Article 1 of [Directive 89/665/EEC], and the principles of equivalence and effectiveness do not preclude the charging of multiple court fees to an individual who brings several court actions concerning the same award of a public contract or that individual from having to pay additional court fees in order to be able to raise supplementary pleas concerning the same award of a public contract within ongoing judicial proceedings.

• BUT• However, in the event of objections being raised by a party concerned, it is for the

national court to examine the subject-matter of the actions submitted by an individual or the pleas raised by that individual within the same proceedings. If the national court finds that the subject-matter of those actions is not in fact separate or does not amount to a significant enlargement of the subject-matter of the dispute that is already pending, it is required to relieve that individual of the obligation to pay cumulative court fees.

Joint cases C‑439/14 and C‑488/14 – pending

• Romanian law requiring an applicant to lodge a "good conduct guarantee" in order to access review procedures

• Contracting authorities retain the good conduct guarantee where the body competent to review their decisions rejects the challenge or where the applicant abandons it, regardless of whether or not the challenge is frivolous

• AG Sharpston's opinion of 28 April 2016

Judgment of the Court in case C-203/14 Consorci Sanitari del Maresme - the concept of a "court or tribunal"

• Reference for a preliminary ruling from the Tribunal Català de Contractes del Sector Públic (Catalan Public Sector Contracts Board)

• A person bringing proceedings may choose between the Tribunal Català de Contractes del Sector Públic and an administrative law action

Judgment of the Court in case C-203/14 Consorci Sanitari del Maresme - the concept of a "court or tribunal"

• The Tribunal Català satisfies the criterion of compulsory jurisdiction because the decisions of the Tribunal, whose jurisdiction does not depend on the parties' agreement, are binding on the parties (paragraph 23 of the judgment).

• Moreover, in practice, tenderers in public procurement procedures do not generally avail themselves of the possibility of directly initiating an administrative-law action, without having first brought a special appeal of the kind in the main proceedings before the Tribunal Català. Essentially, the administrative courts are thus, as a general rule, involved at second instance, with the result that, in the Autonomous Community of Catalonia, primary responsibility for ensuring that EU public procurement law is observed lies with the referring body (paragraph 24).

Judgment of the Court in case C-203/14 Consorci Sanitari del Maresme - the concept of a "court or tribunal"

• The Tribunal Català satisfies the criterion of independence because (paragraphs 19-20 of the judgment):

• - it acts as a third party in relation to the authority which adopted the decision challenged;

• - it carries out its functions in a wholly independent manner, not occupying a hierarchical or subordinate position in relation to any other body and not taking orders or instructions from any source whatsoever;

• - it is thus protected against external intervention or pressure liable to jeopardise the independent judgment of its members;

• - it complies, when performing its duties, with the requirement for objectivity and impartiality vis-à-vis the parties to the proceedings and their respective interests with regard to the subject-matter of those proceedings;

• - the members of the Tribunal are appointed on a permanent basis and cease to hold office only in the circumstances expressly set out in the legislation.

Judgment of the Court in case C-440/13 Croce Amica – the scope of judicial review

• European Union public procurement law, in particular the third subparagraph of Article 1(1) of Directive 89/665/EEC must be interpreted as meaning that the review referred to in that provision constitutes a review of the lawfulness of decisions adopted by contracting authorities, the purpose of which is to ensure that the relevant rules of EU law or national provisions transposing those rules are complied with. It is not possible for such review to be confined to a simple examination of whether the decisions adopted by contracting authorities are arbitrary. On the other hand, that does not mean that it is not open to the national legislature to grant the competent national courts and tribunals the power to review whether a measure was expedient.

Other reccuring problems in the recent case law

• Judgment of the Court of 11 September 2014 in case C-19/13 Fastweb SpA – interpretation and validity of a notice for voluntary ex ante transparency

• Judgment of the Court of 12 March 2015 in case C‑538/13 E-Vigilio – time-limits for instituting proceedings

• Judgments of the Court: of 4 July 2013 in case C-100/12 Fastweb and of 5 April 2016 C‑689/13 PFE + pending case C-355/15 Bietergemeinschaft: Technische Gebäudebetreuung GesmbH and Caverion Österreich GmbH - plea of inadmisibility of a counterclaim made by the successful tenderer alleging that certain technical specifications for the contract were not respected in the bid submitted by the tenderer seeking review

• • Judgment of the Court of 26 November 2016 in case C‑166/14 Medval – time-

limits to bring an action for damages

Thank you!