ECJ case law on remedies

1
ECJ case law on remedies

• Leading up to the new Directives

2
Issues

• Timelines (especially standstill period)
• Direct awards
• Remedies outside the scope of the Directives

3
Overview

• C-111/97, EvoBus
• C-81/98, Alcatel
• C-470/99, Universale Bau
• C-327/00, Santex
• C-249/01, Hackermüller
• C-230/02, Grossmann Air Services
• C-26/03, Stadt Halle

4
C-111/97, EvoBus Austria

• 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.

5
C-111/97, EvoBus Austria

• 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.

6
C-81/98, Alcatel

• 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.
  

7
C-81/98, Alcatel

• 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

8
C-212/02, Commission v Austria

• 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.

9
After the Austrian cases open questions

• How long should the standstill period be?
• What are the consequences for the contracting
  authorities of not respecting the standstill
  period?
• Are there any exceptions to the standstill period?

10
Standstill periods in days

• Austria 7 /14 Bulgaria 10
• Czech 15 Denmark 7-10
• Estonia 14 Finland 21/28
• France 10 Germany 14
• Hungary 8 Ireland 14
• Italy 30 Lithuania 10
• Luxembourg 15 Malta 10
• Netherlands 15 Poland 7
• Portugal 10 Romania 15
• Slovakia 14 Slovenia 20
• Sweden 10.

11
C-470/99, Universale Bau

• 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.

12
C-470/99, Universale Bau

• 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.

13
C-327/00, Santex

• 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.

14
C-327/00, Santex

• 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.

15
C-249/01, Hackermüller

• 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?

16
C-249/01, Hackermüller

• 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.

17
C-230/02, Grossmann Air Services

• 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.

18
C-230/02, Grossmann Air Services

• 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.

19
C-26/03, Stadt Halle

• 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.

20
C-26/03, Stadt Halle

• 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.