Oplæg - Global Revolution, Nottingham 2015

1. Implementation of the ineffectivenessImplementation of the ineffectiveness
remedy in Denmarkremedy in Denmark
Carina Risvig HamerCarina Risvig Hamer
PhD Associate Professor,PhD Associate Professor,
University of Southern DenmarkUniversity of Southern Denmark
Carh@Carh@sam.sdu.dksam.sdu.dk

2. Agenda:Agenda:
1.The Danish Complaints System
1.Implementation of the ineffectiveness remedy in Denmark
1.Voluntary ex ante transparency notices (VEAT) –
implementation and practice in Denmark
2.The suggested implementation of the new Procurement
Directive – impact on remedies

3. 1.1. The Danish Complaints System (I)The Danish Complaints System (I)
-- Complaints Board for Public Procurement
• Administrative body
• Judges and expert members
• Approx. 100 complaints annually (approx. 2200 Contract
Notices).
• Competences:
• EU Public Procurement Directives
• National procurement legislation
• For contracts outside the EU Directives only in
case the contract is of certain cross-border interest

4. 1.1. The Danish Complaints System (II)The Danish Complaints System (II)
-- Requirement to complainants
• Locus Standi:
– Broader approach than the Remedies Directive
– Also organisations and The Danish Competition
Authority
• Time limits:
– Follows the structure in the Remedies Directive
• Fee:
– Approx. 2700 euro for Public Procurement Directive
– Approx. 1350 for national legislation
• Costs: legal costs can be awarded to both parties

5. 2.2. Ineffectiveness in the Danish Remedies System (I)Ineffectiveness in the Danish Remedies System (I)

6. 2. Ineffectiveness2. Ineffectiveness in the Danish Remedies System (II)in the Danish Remedies System (II)
Case Economic sancion
January 3, 2012, Danske
Arkitektvirksomheder v. Thisted
Gymnasium
Approx. 11.000 Euro (DKK 80.000)
January 20, 2012, Danske
Arkitektvirksomheder v. Skanderborg
Gymnasium
Approx. 5800 Euro (DKK 45.000)
March 6, 2012, Reno Norden v. Skive
August 20, 2012, Intego A/S v. NRGi NET
A/S
Fine: approx. 200.000 Euro (DKK 1,5
mio.)
January 10, 2014, Sønderborg Affald A/S
v. Affaldsregion Nord I/S
Approx. 90.000 Euro (DKK 685.000 kr.)
May 7, 2015, Rengoering.com A/S v.
Ringsted Kommune
Approx. 3000 Euro – (DKK 25000 NB: The
minimum sanction)

7. 3. Voluntary ex ante transparency notice (VEAT) (I)3. Voluntary ex ante transparency notice (VEAT) (I)
• Ineffectiveness is not an option in case the contracting
authority:
1. Has published a VEAT notice in TED
2. The contract has not been concluded before the expiry of a
period of at least 10 calendar
3. The contracting authority considers that the award of a
contract without prior publication of a contract notice in the
Official Journal of the European Union is permissible’

8. 3. VEAT Notices in Denmark (II)3. VEAT Notices in Denmark (II)
Preparatory Act to the Danish Enforcement Act states:
•”… if the Complaints Board at a later time considers that the
contracting authority has made a manifest error of assessment
regarding whether the contract was covered by the Procurement
Directives, the Board can declare the contract for ineffective …”

9. 3. The Danish case law regarding VEAT notices (III)3. The Danish case law regarding VEAT notices (III)

10. 4.4. The suggested implementation of the new
Procurement Directive
Today:
•The Complaints Board has not competence to terminate a
contract (outside the ineffectiveness situations)
•State of law unclear:
– Court of Justice: C-503/04, Commission v. Germany, C-81/09, Wall,
– New Article 73 of the 2014 Procurement Directive
•Danish Court cases:
– U 2009.1331 Ø, ”No general duty to terminate a contract”
– Case B-2541-07: ”No general duty to terminate a contract according to EU
law, but serious breaches can lead to such a duty e.g. No contract notice”.
– Case BS 1-542/2008 ”Based on the circumstances the contracting
authority is obliged to terminate the contract” same situation in Case;
U 2012.3232 V

11. 4.4. The suggested implementation of the new
Procurement Directive
• The (proposed) Procurement Act § 185 (2) deals with the
consequences for a contract if a decision to enter into the
contract has been annulled by the review bodies
– “if a decision to enter into a contract has been annulled by a review
body the contracting authority must seek to terminate the contract
unless “particularities apply” “
• Unanswered questions:
– What is particularities?
– Which consequences will the new provision have? Damages to
tenderers?
– VEAT notices will not be a safe guard here…

12. …… The Danish review system and remedies forThe Danish review system and remedies for
breaches of the Public Procurement Rulesbreaches of the Public Procurement Rules
www.djoef-forlag.dk
Carina Risvig Hamer
PhD Associate professor,
University of Southern Denmark
Phone: 004523717973
E-mail: carh@sam.sdu.dk
www.udbudslov.dk