ROLE AND COMPETENCES OF THE EU COURTS IN THE AREA OF PUBLIC PROCUREMENT Cani Fernández Vicién

1. Open Government Initiative Project Инициатива отворено управление ROLE AND COMPETENCES OF THE EU COURTS IN THE AREA OF PUBLIC PROCUREMENT Cani Fernández Vicién Sofia, 21-24 June 2006

2. INDEX • THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE • PROCEDURE: • INFRINGEMENT BY A MEMBER STATE OF EU LAW • PRELIMINARY RULING

3. THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE

4. THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE • The institution known as the “Court of Justice”consists of two courts: • COURT OF JUSTICE (ECJ) • COURT OF FIRST INSTANCE (CFI) • The task, each within its jurisdiction, is to ensure that in the interpretation and application of the treaties the law is observed • The national court is the Community court to hear and determine all cases which do not fall within the ECJ or CFI. National judge is also a Community judge.

5. THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE • The ECJ’s Jurisdiction: • Finding that a Member State has failed to fulfil an obligation under the Treaty • Unlimited jurisdiction with regard to penalties provided for in regulations • Review of the legality of an act or failure to act • Preliminary Ruling • Compensation for damages caused by Institutions • Objection of illegality • Decision in disputes between concerning obligations of Member States under the Statute of the European Central Bank • Appeal against CFI’s judgements

6. THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE • The CFI’s Jurisdiction: actions brought by individuals (including companies) • Review of the legality of acts adopted by the institutions or the ECB • Action for failure to act by the institutions or the ECB • Actions for compensation for damages • Disputes between the institutions and their servants • Following an arbitration clause • Appellate Jurisdiction for decisions given by Judicial Panels

7. THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE • Public Procurement is regulated through DIRECTIVES • Directives: • They constitute the appropriate measure when existing national legislation must be modified or national provisions must be enacted • They are binding upon Member States to which they are addressed, as to the results to be achieved • Member States are free to decide how they transpose them into national law • Although they are not directly applicable, they could have direct effect

8. THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE • Main actions before the ECJ in the field of Public Procurement : • Review of the legality of the Directives (before CFI/ECJ) • Actionfor infringement by a Member State of EU Law (before ECJ) • The ECJ can give an answer to preliminary question on the interpretation of the directive • An individual can invoke the non-transposed or partly transposed directive against the Member State to which it is addressed (at national level)

9. PROCEDURE • ACTION FOR INFRINGMENT BY A MEMBER STATE OF EU LAW • PRELIMIANRY RULING

10. PRE-LITIGATION: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • Aim: to give the Member State an opportunity of remedying the infringement before the matter is brought before the ECJ • Letter before action: the purpose is to identify the alleged infringement and to provide the Member State with a deadline to submit comments even put an end to the infringement • The Member State must have a reasonable time in which to make its observations

11. PRE-LITIGATION: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • Reasoned opinion: issued if the Commission considers that the Member State’s comments are not satisfactory • The Commission must prescribe in the reasoned opinion the time within which the Member State must comply with it • A reasoned opinion enumerates the measures which the Member State should take within the prescribed period in order to bring it to an end • If a Member State does not comply with the reasoned opinion timely, then litigation before the ECJ

12. 1. PROCEDURE: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • (i) WRITTEN PROCEDURE: • Initiated by written application by the European Commission (pleading) represented by an agent appointed for each case • The agent may by assisted by an adviser or by a lawyer • Application must state at least: • Applicant’s name and address • Summary of the pleas in law on which the application is based • Date of lodgement = date on which a copy of the signed original is received at the Registry

13. 1. PROCEDURE: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • (i) WRITTEN PROCEDURE: • The MS lodges a defence within one month (time-limit can be extended) • Written procedure may be supplemented by a Reply (Commission) and Rejoinder (MS) • Intervention by individuals not allowed, but also other Member States • Language: official one of the defendant MS (if many, Commission chooses)

14. 1. PROCEDURE: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • (i) WRITTEN PROCEDURE: • Preliminary Report by the Judge-Rapporteur • Court, after hearing the Advocate General, can prescribe measures of inquiry by means of an Order: • Personal appearance of the parties • Request for information and production of documents • Oral testimony • Commissioning of experts and/or inspection of the place

15. 1. PROCEDURE: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • (i) WRITTEN PROCEDURE: • The Judge-Rapporteur and the Advocate-General may request the parties to submit all such information relating to the facts, and all such documents, as they may consider relevant. • Written procedure ends with the president fixing a date for the opening of the oral procedure (unless written questions have been addressed to the parties). It can be decided not to hold hearing with the consent of the parties.

16. 1. PROCEDURE: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • (ii) ORAL PROCEDURE: definition • “The oral procedure shall consist of the reading of the report represented by a Judge acting as Rapporteur, the hearing by the Court of agents, advisers and lawyers and of the submission of the Advocate General, as well as the hearing, if any, of witnesses and experts”

17. 1. PROCEDURE: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • (ii) ORAL PROCEDURE: • Hearings opened and directed by the President of the assigned Chamber. Questions can be put to the parties • Advocate General delivers his opinion orally (in practice only final conclusions are read) • President declares the oral procedure closed, unless the Court orders any additional measure of inquiry

18. 1. PROCEDURE: ACTION FOR INFRINGEMENT BY A MEMBER STATE OF EU LAW • (iii) JUDGMENT: • Is delivered in open court • Is binding from the day of its delivery • Request for rectify clerical mistakes, errors in calculation and obvious slips in it within two weeks • Judgment is published in the European Court Report (E.C.R.) • (iv) COSTS: • There are no court fees in respect of proceedings before the European courts • A decision on cost shall be given in the final judgment

19. PROCEDURE • 2. PRELIMINARY RULING

20. 2. PROCEDURE: PRELIMINARY RULING • The Preliminary Ruling is essential for the preservation of the Community character of the law established by the Treaty • Object: to ensure that in all circumstances this law is the same in all States of the European Union • EC Treaty empowers the ECJ to give preliminary rulings on the INTERPRETATION of Community law and on the VALIDITY of acts of the Community institutions • The initiative for requesting a preliminary ruling belongs to a COURT OR TRIBUNAL of a Member State

21. 2. PROCEDURE: PRELIMINARY RULING • A national court can bring a matter before the ECJ by way of a preliminary ruling only if a dispute is pending before it in the context of which Community law is involved • The national court determines the content of the preliminary questions as well as the stage of the proceeding to request it • Example: The contracting authority “A” has awarded directly a contract for the provision of public services according to national provisions to the undertaking “B”. This decision is appealed before the National Supreme Court “C”. “C” has doubts as to whether the national law is compatible with Community law, and therefore requests for a preliminary ruling to the ECJ

22. 2. PROCEDURE: PRELIMINARY RULING • WRITTEN PROCEDURE: • Initiated by decision of national court requesting preliminary ruling • Such decision is notified to parties to the national proceedings, Member States, Commission (only in some cases, also to Council, EP and ECB) • Two months to submit observations • Preliminary report by Judge-Rapporteur • Usually no measures of inquiry adopted since facts are dealt with by the national court • The language will be the one of the court which made the reference

23. 2. PROCEDURE: PRELIMINARY RULING • (ii) ORAL PROCEDURE: • Could be decided not to hold hearing if parties do not object • Relevant national procedural laws applicable to representation and attendance of the parties • Parties can voluntary decide attendance • (iii) JUDGMENT: Binding on the national court hearing the case in which the decision is given • (iv)COSTS: matter of national court to be dealt with in the final decision

24. FINAL STEP • Ifthe Member State concerned fails to take the necessary measures to comply with the Court's judgment within the time limit laid down by the Commission, the latter may bring the case before the Court of Justice • If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it