Presentation by Matrta Laszuk from the European Commission, at the regional conference organized by SIGMA on Public procurement review bodies, which took place in Ohrid, the former Yugoslav Republic of Macedonia on 9-10 June 2016

1. 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

2. 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

3. 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?

4. 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/attachmen
ts/1/translations/en/renditions/native
 Country fiches:
http://ec.europa.eu/DocsRoom/documents/10087/attachmen
ts/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

5. 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

6. 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

7. 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"

8. Some data
Differences between Member States in:
 the length of procedures
 the number of cases
 fees and litigation costs

9. 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

10. 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.

11. 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

12. 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.

13. 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.

14. 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.

15. 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

16. 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

17. 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).

18. 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.

19. 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.

20. 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

21. Thank you!