Transcript Master Slide

Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish system for
Review and Remedies
by
Jens Fejoe
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
Introduction:
Background for the
Danish Public
Procurement Regime

Dir. 2004/18 + Dir. 2004/17
• Acts and Ministerial Orders

Dir 89/665+ Dir 92/13
• Act on The Complaints Board for Public
Procurement
Jens Fejø
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
Introduction: Background for
the Danish Public Procurement
Regime (cont.)
Danish Ministerial Order No 937/2004 on
the procedures for the award of public
supply contracts, public service contracts
and public works contracts (implementing Dir 2004/18)
 Ministerial Order No 936/2004 on Dir
2004/17

• The directives are Annexes to the Orders
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish System of
Complaints

The Complaints Board for Public
Procurement

Ordinary Courts

Secretariat for the Competition
Authority
Jens Fejø
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish Complaint
Board for Public
Procurement
Legal foundation
 Composition
 Competences
 Working methods

Jens Fejø
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish Complaints
Board for Public
Procurement

Legal foundation:
Act No. 415/2000 as amended
by Act 572/2007 on the Complaints Board for Public Procurement
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Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish Complaints
Board for Public
 Composition Procurement
• Judges and expert members
• The Judges (one Chairman, and 3 Deputy
Chairmen)
– appointed for a period of four years
– members of the judiciary (on High Court level)
• The expert members (approx. 15 ) shall be
appointed from among persons having
knowledge of
– building and construction,
– public procurement,
– transport and
– other associated activities
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish Complaint
Board for Public
Procurement
Composition
 In each case/“chamber”: 1 Judge + 2
expert members.

• May be decided to have 2 Judges + 4
expert members
Jens Fejø
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish Complaints
Board for Public
Competences Procurement

Voiding a decision taken by a contracting
authority on public procurement
• An individual and concrete assessment of the
circumstances. Of relevance is here
– the clarity of the rules that are breached
– the gravity of the infringement
• Examples from Danish case law
– Unequal treatment – impact on the competition
– Nontransparent tender specifications or award


Awarding compensation for an economic
loss
Preliminary measures
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish Complaints
Board for Public
Procurement
Working method
• After a claim has been made (individual
interest or special organizations)
• Administrative body, principle of official
maxime
• Fast procedure
• Written evidence and oral questions, but no
power to investigate
• Low costs for the claiming company
• No risk of payment to the public authority if
the claimant looses its claim
• Binding effect of the decision
Jens Fejø
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Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish System of
Complaints

Ordinary Courts
• Courts of law
• Full trial (Document, Oral hearing, Cross
examination, Duty to tell the whole truth)
• To a large extend the court will be bound
by the parties´ presentation of the case
(Principle of contradiction)
• May award compensation to the winning
party for costs of procedure
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish System of Complaints

The Complaints Board for Public
Procurement
• Formalities
– A decision taken by the Claims Board may be
reviewed by the ordinary courts
• 8 Weeks
• Appeal possible to one of courts of first instance
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Union, principally financed by the EU
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Article 234 of the EEC Treaty
and the Complaints Board

The ECJ Court's decision of 18
November 1999
• The Danish Complaints Board for
Public Procurement is a ”tribunal”
entitled to make a reference to the
ECJ Court
Jens Fejø
© OECD
Union, principally financed by the EU
A joint initiative of the OECD and the European
The Danish System of
Complaints

The Claims Board for Public
Procurement
• Formalities (cont.)
– Fee approx. 500 EUR
– The contracting authority must be informed on
the complaint
– No time limits
– No cost for the claimant if he looses the case
– Cost may be put on the Public authority
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Union, principally financed by the EU
A joint initiative of the OECD and the European
Danish Implementation of the EU Public
Procurement Directives into Danish Law

Recommandations et.al. from the Secretariat of the Competition Council
• Not binding
• Guiding
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Appeal to the Ordinary Courts
and the Role of these

Procurement matters are practically
never brought to the ordinary courts in
first instance

It can be estimated that about 5 percent
of the Complaints Board's decisions are
changed by the ordinary courts
Jens Fejø
© OECD