Legal protection below the EC thresholds

1. Legal protection below the EC thresholds Martin Trybus (from 1st June University of Birmingham) Conference onPublic Procurement Review & Remedies Systems Dubrovnik 24-25 May 2007

2. Background • Directives (incl. on review) do not apply below certain thresholds. • The larger part of public contracts are below the thresholds. • Only the EC Treaty applies below the thresholds. • Commission focus on procurement below the thresholds. • Review below thresholds?

3. C-275/98, Unitron Scandinavia • Facts: A contract for the supply of eartags procured by a private company for a procuring authority (was granted exclusive rights) was awarded without following the procedures of the Directives. • Applicant: Should follow Directive by analogy.

4. C-275/98, Unitron Scandinavia • ECJ: No requirement to follow the Directive but “the only requirement […] must comply with the principle of non-discrimination on grounds of nationality.” • “It should be noted, however, that the principle of non-discrimination on grounds of nationality cannot be interpreted restrictively. It implies, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that it has been complied with.”

5. C-324/98, Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG (“Teleaustria”) • Facts: proceedings between Telaustria and Telefonadress, on the one hand, and Telekom Austria, on the other, concerning the conclusion by Telekom Austria of a concession contract with Herold Business Data AG for the production and publication of printed and electronically accessible lists of telephone subscribers (telephone directories). • Not contract for pecuniary interest/services concession.

6. C-324/98, Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria AG (“Teleaustria”) • “Notwithstanding the fact that […] such contracts are excluded from the scope of Directive 93/38, the contracting entities concluding them are, none the less, bound to comply with the fundamental rules of the Treaty, in general, and the principle of non-discrimination on the ground of nationality, in particular, that principle implying, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that the principle has been complied with. • That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed.”

7. Legal protection below EC thresholds • System applies equally to contracts above and below the thresholds. • Cyprus, Estonia, France, Hungary, Lithuania, the Netherlands, Portugal, Romania, Slovenia and Sweden. • System applies only to contracts above the thresholds. • Germany, Ireland and the United Kingdom.

8. Legal protection below EC thresholds • Substantial differences of the review and remedies system with regard to contracts below the thresholds. • Czech Republic: additional requirements have to be fulfilled with regard to certain remedies. • Denmark: in some situations there is a different legal foundation for remedies. • Finland: entirely different path for judicial review.

9. Conclusions • Requirements below thresholds: • Non-discrimination on grounds of nationality and transparency. • Some form of review. • Solutions: • Apply Directives (safe but burdensome). • Separate system (less safe but effective) • Ideas: • Differentiation: low value contracts? • Differentiation: number of instances?

10. Thank you! • Martin Trybus University of Birmingham School of Law Edgbaston Birmingham B15 2TT United Kingdom Tel: +44 (0)121 414 3637Fax: +44 (0)121 414 3585 M.Trybus@bham.ac.uk