5. ‘myu ’ryru syv†r ”tvˆt uˆ upr s•st† ˆ‰†s‘s–ry— s ˜r‘’rt ™usur ‘sd ”tˆev†rupsu— s‰urt upr
conclusion of a contract, the powers of the body responsible for the review procedures shall be
limited to damages being awarded to any person harmed by an infringement.
Article 7(6) of the Act (1992:1528) the relevant law in the present case states that:
A contracting authority who has failed to comply with the provisions of the present Act shall
compensate the associated damage suffered by a supplier.
The relevant jurisprudence relies on the judgements in the following: Case T 1441-97 and Case T
2417-98 issued by the Supreme Court of Sweden and Case T 2934-08 issued by the Court of Appeal
of Scania.
III. The factual framework and previous proceedings
Rederi AB Virgo (’Virgo’) is the parent company of Rederi AB Origo (’Origo’) and Rederi AB Ishavet (’
Ishavet’). The sister vessels M/S Origo and M/S Stockholm were owned by Origo, respectively by
Ishavet. During the period 1983-1998 the parent company has offered the vessel M/S Origo and
made it available to the municipality of Gothenburg to be used for educational purposes within the
maritime navigation program. The high school ’Lindholmen’ was the beneficiary of the service
purchased by the municipality of Gothenburg.
However for the school year 1998/1999 the municipality of Gothenburg decided to employ the vessel
Gunnfjaun owned by the municipality of Gotland for the same training purposes. Prior to school year
1999/2000 the municipality of Gothenburg relying on a contractual option decided to prolong the
use of the vessel Gunnfjaun for one more year. Starting with year 2000 P.E., representing Virgo, has
acquired all the capital shares of Ishavet. On the 5th of April 2000 the municipality of Gothenburg on
behalf of its Education Department has published a list named ’Specification for procurement of a
training vessel for the school year 2000/2001’. The specification list contained six criteria of
assessment:
1. Documented experience and references
‡h fryyrx rgmv”‘r…u
‚h h”rtsuv…– wˆyuy
ih jrxvertd ”rt‰ˆt‘s…wr
kh ltvwr
nh o…evtˆ…‘r…usx v‘”swu
ipr wˆ…utswumsx ”rtvˆ† •sy ‰ts‘r† ’ru•rr… €€pqrp‡qqq s…† €€pqkp‡qq€— wˆ‘”tvyv…– s‡ †sdy •vup
the possibility to extend it to 100 days. The possibility to prolong the contract for the next school
year, 15/09/2001-15/05/2002, was also mentioned. On the 8th of May 2000 Virgo submitted a tender
specifying a price of SEK 684,000 for 72 days and an additional price per day of SEK 9,500
representing an amount of SEK 950,000 for 100 days for the use of vessel M/S Stockholm. The
municipality of Gotland also submitted a tender indicating the price of SEK 842,000 for 72 days and
an additional price per day of SEK 9,700 representing an amount of SEK 1,000,000 for 100 days.
The Gotland’s tender has been deemed to be qualitatively superior and the provision of deck and
engine training courses has been a determinant factor in choosing to award the contract to Gotland
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6. s…† r‘”xˆd upr eryyrx tm……‰usm… ‰ˆt upr ywpˆˆx drst ‡qqqp‡qq€h ipr ”str…u wˆ‘”s…d— Virgo brought
an action against the award procedure and Ishavet, Virgo’s subsidiary, has been assigned to present
the claim for damages in the first instance.
The first claim of the applicant related to the alleged infringement of the public procurement law
and the associated damages of SEK 934,000 and the second claim asked for interest to be paid
starting with 2 December 2000 until the payment will be carried out [3“ s…† try”rwuverxd ‰tˆ‘ upr €v
June 2001 until the payment will be carried out [4“h ipr †r‰r…†rt psy wˆ…uryur† upr wxsv‘y— upˆm–p
admitted that the tender price submitted by the applicant amounted to SEK 684,000 and the interest
terms were reasonable per se.
The arguments supporting the alleged infringement of the public procurement rules are the
following:
i. During the tender evaluation undue precedence has been given to Gotland’s bid despite the fact
upsu Virgo offered better or equivalent equipment;
ii. The criterion (2) vessel equipment has been given more weight than mentioned in the
y”rwv‰vwsuvˆ…yw
iii. The decision in favour of Gotland is based on a discretionary assessment of the criterion (2)
eryyrx rgmv”‘r…uw
iv. The assessment of the criterion (5) price has been based on a period of 100 days instead of 72
†sdyw
v. The assessment of the criterion (3) operating costs is incorrect since Virgo’s bid provided in fact
‰ˆt xˆ•rt wˆyuy s…† swwˆt†v…– uˆ upr resxmsuvˆ… trymxu psy ’rr… †rr‘r† sy rgmvesxr…u uˆ tˆuxs…†xy
bid;
vi. The lack of rank order and clarity of the tender specification list had as a result the fact that
ˆ…xd u•ˆ ˆ‰ upr wtvurtvs •rtr swumsxxd ‘rsymts’xry k„ ”tvwr s…† ‚„ ˆ”rtsuv…– wˆyuyh
The calculation of the amount of damages relied on the deduction of SEK 16,000 from the total price
of SEK 950,000. The amount of SEK 16,000 represented the cost savings retained by Virgo in the
case of not performing the service. The contracting authority contested all the six arguments
presented by Ishavet in the support of their claim. It has been contested also the fact that Virgo tried
actually to limit the harm. The compensation asked for the suffered harm was doubtfully reasonable
in the view of the defender. Admitting that such damages were due in the first place, the amount
should be reasonable in function of the character of the infringement, the incurred costs and the
plausibly estimated profit; according to the defender a reasonable calculation would lead to much
less than the amount claimed by Virgo.
The claimant, Ishavet developed its arguments and specified that the technical characteristics of the
vessel M/S Stockholm were known to the contracting authority since the sister vessel, M/S Origo
had been used for the same purpose during the period 1983-1998. M/S Stockholm had 10% lower
fuel consumption than the vessel Gunnfjaun, thus the operation costs must be at least 10% lower.
Finally, Ishavet claimed that if the evaluation had been performed in a legally correct manner, the
contract would have been awarded to Virgo. Both Virgo by way of employing three agents and P.E.
attempted in vain to find other assignments for M/S Stockholm.
The contracting authority has objected that the requested exploitation of the vessel for the school
year 2000/2001 was of 129 days. The lack of a class room on the training vessel M/S Stockholm was
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7. sxyˆ s†rwvyver ‰swuˆth ipr wxsyy tˆˆ‘ •sy s wˆ‘”mxyˆtd trgmvtr‘r…u s…† upr yruuv…– ˆ‰ s wxsyy tˆˆ‘
on the board of M/S Stockholm was not finalized at the date when the evaluation has been
performed. The evaluation has employed an objective approach based on the contract award
criterion ’most economically advantageous tender’ [5“h ipr uryuv‘ˆ…vry ˆ‰ lhoh— tr”tryr…usuver ˆ‰
Virgo and experienced vessel commander and L.O., teacher and principal of the high school ’
Lindholmen’ and sea captain have been brought before the Court.
The first instance has decided that the municipality of Gothenburg was liable to pay damages of SEK
668,000. The second instance on the appeal brought by the contracting authority has increased the
due amount of damages to SEK 834,000. The difference of SEK 100,000 between the claimed
amount and the one established by the Appeal Court depended on the number of days of actual
exploitation.
The municipality of Gothenburg has applied for a review procedure before the Supreme Court and
obtained a leave to appeal. The Swedish Board for Public Procurement has expert-witnessed before
the Supreme Court [6“h
IV. The Judgment of the Supreme Court of 31 May 2007
The Supreme Court made a case law analysis thus clarifying the jurisprudence in this matter. The
relevant jurisprudence relies on the judgements in the following: Case T 1441-97 and Case T
2417-98 issued by the Supreme Court of Sweden.
Case T 1441-97 concerned architectural services purchased by a municipal authority. In the tender
specification the contracting authority mentioned that offering the lowest price may not constitute
the decisive factor for the award, though no other criterion could be deemed as relevant according
to the assessment made by the public purchaser. If a contracting authority opts to adopt the most
economically advantageous tender as contract award criterion, the tenders shall be appraised in
order to determine which one offers the best value for money. On this pursuit the applicable
economic and quality criteria shall be established in advance and in a transparent way. [7“ z
quasi-contractual relation occurs between the contracting authority and the presumptive provider of
service. This relation entitled the tenderer to obtain damages for the positive contractual interest.
The Swedish law Professor Hellner criticised this judgment and disclosed the possibility that by
following this reasoning several presumptive suppliers could be entitled to damages for loss of
profit. [8“
Case T 2417-98 concerned a direct award of cleaning services. The right to obtain damages for the
positive contractual interest has been reaffirmed, the burden of proof has been specifically
attributed to the claimant and a differentiation between contract law and public procurement law
has been imposed. Among others, three criteria must be considered: the character of the
infringement, the incurred costs and estimated profit calculated at a reasonable amount. The
theoretical objection of Professor Hellner in relation to the judgment decision in Case T 1441-97 has
been taken into consideration and discussed by the Supreme Court.
In the present case, the Supreme Court had the opportunity to clarify where the law stands in this
matter. However, the facts of the case reveal the participation of only two suppliers, thus the Hellner
objection does not apply and the presumptive supplier becomes the actual supplier who would have
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8. •ˆ… upr s•st†—v‰upr ”tˆwmtr‘r…u tmxry ps† ’rr… wˆttrwuxd s””xvr†h ipr ™m”tr‘r {ˆmtu r…†ˆtyr†
the verdict of the Court of Appeal.
The Court maintained its reasoning that the role of the damages for public procurement was both
dissuasive and compensatory. The factors to be taken into consideration according to the Brasserie
du Pêcheur doctrine include the clarity and precision of the rule breached, the measure of discretion
left by that rule to the national authorities, whether the infringement and the damage caused was
intentional or involuntary, whether any error of law was excusable or inexcusable, and the adoption
or retention of national measures or practices contrary to Union law. [9“ ipr ’trswpv… gmryuvˆ…
being manifest its intentional or involuntary character would become irrelevant. The liability for
damages for public procurement is hence strict, once a manifest infringement has been ascertained.
Virgo has the right to be placed in the financial position that it would otherwise have had, if the
contract had been correctly awarded. The requested period of employment was of 129 days, though
the applicant has calculated the damage claim based on a 100 days period and this will be the
reference period. The actual period was of approximately 80 days, thus the price of SEK 850,000 as
a basis for the calculation of damages has been upheld. The amount of SEK 16,000 saved variable
costs has also been endorsed. The verdict of the Court of Appeal has been upheld by the Supreme
Court.
V. Damages for the positive contractual interest
Recital 17 of the Remedies Directive states that a review procedure should be available at least to
any person having or having had an interest in obtaining a particular contract and who has been or
risks being harmed by an alleged infringement. The loss of profit i.e. the positive contractual interest
has not been explicitly included in the concept of ’an interest in obtaining a particular contract’. The
Government Bill 2006/07:128 explains that it might be understood that only the costs related to
tender preparation and participation, i.e. the negative contractual interest is included in the concept
of ’an interest in obtaining a particular contract’. [10“
Another Government Bill 1992/93:88 mentioned reasons for a complete compensation of the harm
caused by not obtaining the contract. [11“ |ˆu ˆ…xdupr m……rwryystd r}~s…ur wˆ…utswumsx wˆyuy ypsxx
be included, but also the so-called positive contractual interest. The person who applies for damages
has the burden of proof and has to substantiate the harm. There must be a relation of causality
between the loss of opportunity to obtain the contract and the failure of the contracting authority to
comply with the provisions of procurement law. The only reason for not obtaining the contract
should have been this failure.
In T 2417-98 the Supreme Court established that the principles to be applied must be the same as in
the case of contractual liability. As a main rule the criteria to be used are i.a. the following: the
character of the infringement, the incurred costs and estimated profit calculated at a reasonable
amount. The forecast that other suppliers, than the one who brought the action for damages, could
have obtained the contract must be considered in any case. If such good prospects have existed, the
applicant will be only entitled to compensation for the negative contractual interest. [12“
In T 2883-04 the Supreme Court has established the law for the circumstances of the failure to
comply with procurement rules and denial of the possibility to submit a tender. Only one supplier
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9. ‘sd ’r r…uvuxr† uˆ wˆ‘”r…ysuvˆ… ‰ˆt xˆyy ˆ‰ ”tˆ‰vu s…† upr wxsv‘s…u psy upr ’mt†r… ˆ‰ ”tˆˆ‰ upsu upr
contract would have been awarded to him unless the failure to comply had occurred. The
contracting authority must be able to contest the claim for positive contractual interest based on the
fact that other suppliers had a good chance to have won the contract, no matter if these other
suppliers are or not parties in the trial.
In T 2417-98 the Supreme Court established that the possibility to pay damages for the positive
contractual interest to more than one supplier is excluded. However the possibility to obtain
damages for the loss of profit must be preserved. The first requisite is the failure of the contracting
authority to comply with the procurement rules. The second requisite is that the claimant has had an
actual chance to win the contract and the third requisite is that this chance has been lost due to the
failure to comply with the procurement law. [13“
VI. Conclusion
Member States shall ensure that the participation of a body governed by public law as a tenderer in
a procedure for the award of a public contract does not cause any distortion of competition in
relation to private tenderers. [14“ ipvy vy upr swumsx yvumsuvˆ… v… upr ”tryr…u wsyr •prtr upr •v……rt ˆ‰
the contract incorrectly awarded has been a municipal council.
The rules on remedies for an illegal direct award are less ambiguous. Ineffectiveness is a regular
remedy that must be imposed in order to restore competition and create new business opportunities
for those economic operators which have been deprived illegally of their opportunity to compete.
The award of damages does not constitute an appropriate alternative penalty to be used as a
substitute of the ineffectiveness in accordance with Article 2e of the New Remedies Directive [15“h
Since the construction of the article 7(6) LOU does not entitle an award of general damages, but the
rule has been meant to serve a mixed purpose, dissuasive and compensatory, the reparation for the
positive contractual interest must be applicable for the cases, where the supplier has lost the
contract because of a legally incorrect procedure. The compensation for the positive contractual
interest is fully compatible with the legislative motives. [16“
EU procurement law does not exclude the application of stricter sanctions in accordance with
national law. [17“ zwwˆt†v…– uˆ upr ™•r†vyp xs• upr s•st† ˆ‰ †s‘s–ry ”xsdy s†ˆm’xr tˆxr—
dissuasive and compensatory. [18“ ipr v‘”ˆyvuvˆ… ˆ‰ ‰v…ry ˆ… upr wˆ…utswuv…– smupˆtvudvy wˆ…yv†rtr†
to be an effective and dissuasive remedy. [19“ ˆ•rert upr ™•r†vypxs• psy ”tr‰rttr† upr yˆxmuvˆ…
to pursue the dissuasive effect via the award of damages in the circumstances of a faulty tender
procedure. This solution has been criticised by Swedish scholars for its lack of effectiveness. [20“
Several cases of contempt of court and unreasonably long procedures in relation to the infringement
of provisions of public procurement law have been criticised by the Justice Ombudsman. [21“
In T 2934-08 the Court of Appeal of Scania the right to be awarded damages for the positive
contractual interest has been adjusted from SEK 13,325,760 to zero relying on the contributory fault
of the claimant that consisted in disregarding the procedural terms; the claimant failed to challenge
the decision of the contracting authority within the time limit imposed by law. [22“ ipvy …r–xv–r…wr
implied that de facto no remedies have been enforced against an infringement of procurement law
established by the Court. [23“
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10. ipr …r• wˆ…yutmwuvˆ… ˆ‰ upr stuvwxr sn„ ˆ‰ zwu €rr‡y€k‡v„ sy ‰ˆt‘r† ’d stuvwxr €n‡q„ ˆ‰ upr zwu
(2010:571) contains the old formulation and it adds that:
The right to damages includes the compensation granted to a candidate or a tenderer, who has
participated in a public procurement procedure and supported costs for preparing the submission
and participation in the tender procedure, if the failure to comply with the provisions of this Act has
led to the loss of the opportunity to be awarded the contract.
The factual background of the case, namely the existence of only two suppliers who participated in
the tender award implied that the question of a thorny burden of proof placed in the hands of the
claimant could be avoided. This question has neither been satisfactorily enlightened by the
pre-legislative scrutiny documents. The substantiation of the scenario that a certain supplier would
have won the award, it might require to prove that any other alternative choices would have been
excluded by law and envisage a system of equations where only one solution can be legally correct.
Such a system is of course an ideal one, where no margin of discretion would be permitted.
[1“ {ˆ‘‘r…u …ˆ ‡q‚ uˆ upr stuvwxr €n‡q„ ˆ‰ upr lm’xvw ltˆwmtr‘r…u zwu ‡qqsy€qr€„h
[2“ ™rr Directive 89/665/EEC ˆ‰‡€ jrwr‘’rt €rvr ˆ… upr wˆˆt†v…suvˆ… ˆ‰uprxs•y—tr–mxsuvˆ…y
and administrative provisions relating to the application of review procedures to the award of public
supply and public works contracts; OJ L 395, 30.12.1989, p. 33–35h
[3“ €…urtryu sury zwu stu i‡„ v… wˆ…um…wuvˆ… •vup stu ny €… upr wsyr ˆ‰ wˆ‘‘rtwvsx wtr†vu trxsuvˆ…y
between private undertakings the failure to pay results in the obligation to pay interest. Where an
undertaking has a requirement on a public authority or other public body related to payment of
goods or services the same rule shall apply. The rate for an annual interest shall correspond to the
current rate of reference with an addition of 8 %.
[4“ €…urtryu sury zwu stu i‚„ v… wˆ…um…wuvˆ… •vup stu ny €‰upr trgmvtr‘r…u wˆ…wrt…y †s‘s–ry ˆt
other compensation, interest shall be payable on the amount due from the day when the claim has
been lodged and the necessary supporting evidence has been submitted The debtor is not liable to
pay interest for the period before the claim has been lodged and the evidence has been made
available [to the debtor]. The rate for an annual interest shall correspond to the current rate of
reference with an addition of 8 %.
[5“ ztuvwxr k‚ ˆ‰upr Directive 2004/18/EC ˆ‰ upr omtˆ”rs… lstxvs‘r…u s…† ˆ‰ upr {ˆm…wvx ˆ‰ ‚€
March 2004 on the coordination of procedures for the award of public works contracts, public supply
contracts and public service contracts ; OJ L 134, 30.4.2004, p. 114-240 sy v‘”xr‘r…ur† ’d stuvwxr
12(1) of the Act 2010:571
[6“ ™rr sxyˆ http://www.kkv.se/upload/filer/upph...h
[7“ ipvt† v…†r…u ˆ‰ upr rwvusx in ˆ‰upr jvtrwuver wvur† ym”ts ‰ˆˆu…ˆur kh
[8“ rxx…rt— s• ˆ‰ iˆtuy— kup r†vuvˆ… ”s–r ins s…† ‚i €rrvprr ”s–r rkqh lm’xvw ltˆwmtr‘r…u s…†
the right to Damages.
[9“ o{‚— k ˜stwp €rrn— Joined cases C-46/93 and C-48/93— Brasserie du Pêcheur SA v
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11. ƒ„…†‡ˆ‰‡Š„‹ŒŽ ‡„ˆ‘’Œ“…† “…† ”’‡ •„‡‡… – —‡‘‰‡“‰˜ ™š —“‡ š™‰ ”‰“…ˆŠ™‰› ‡œ Š“‰‡
Factortame Ltd and others, [1996] ECR I-01029, paragraph 56.
[10“ tˆert…‘r…u žvxx ‡qqnpqsy€‡v— ”s–ry iii~iikh
[11“ tˆert…‘r…u žvxx €rr‡pr‚yvv— ”s–r €q‡h
[12“ ™rr NJA 2000 page 712h
[13“ ™rr sxyˆ tˆert…‘r…u žvxx wvur† ym”ts su ‰ˆˆu…ˆur €q— ”s–r iikh žd •sd ˆ‰ s…sxˆ–d—upr
non-contractual liability of the Union within the meaning of the Article 340(2) TFEU incurs if a series
of conditions are met, namely: the alleged conduct on the part of the institution must be unlawful,
actual damage must have been suffered and there must be a causal link between the alleged conduct
and the harm pleaded. The first of those conditions, the unlawful conduct alleged against an
institution must consist of a sufficiently serious breach of a rule of law intended to confer rights on
individuals. The decisive test for finding that that requirement is fulfilled is whether the institution
concerned manifestly and seriously disregarded the limits on its powers. CFI, 14 December 2005,
Case T-383/00— Beamglow Ltd v European Parliament, Council of the European Union and
Commission of the European Communities, [2005] ECR II-05459, paragraphs 95-99.
[14“ rwvusx i ˆ‰ upr jvtrwuver wvur† ym”ts ‰ˆˆu…ˆur kh
[15“ ™rr Directive 2007/66/EC ˆ‰upr omtˆ”rs… lstxvs‘r…u s…† ˆ‰upr {ˆm…wvx ˆ‰ €€ jrwr‘’rt
2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the
effectiveness of review procedures concerning the award of public contracts ; OJ L 335, 20.12.2007,
p. 31-46h
[16“ €dem footnote 14.
[17“ rwvusx ‡q ˆ‰ upr jvtrwuver wvur† supra footnote 15.
[18“ |‚z ‡qqs— ”s–r ‚kvh
[19“ ztuvwxr ‡r ˆ‰ upr jvtrwuver wvur† ym”ts ‰ˆˆu…ˆur €kh
[20“ ˜s†rxx— ih Ÿ žu t¡xm…†— jhy z•st† ˆ‰ †s‘s–ry v… upr ‰vrx† ˆ‰ ”m’xvw ”tˆwmtr‘r…u— ™e‚i ‡qqv
pages 579.
[21“ ¢vxr ‚h ‚q‡n~‡qqr— {ˆ‘”xsv…u s–sv…yu ‘m…vwv”sxvuvry ˆ‰ Tomellila and Simrishamn concerning
contempt of court; File JO 1282-2007, Complaint against municipality of Ydre concerning contempt
of court; File JO 5301-2009 {ˆ‘”xsv…u s–sv…yu ‘m…vwv”sxvud ˆ‰ tˆupr…’mt– wˆ…wrt…v…– wˆ…ur‘”u ˆ‰
court; File JO 3691-2007 Complaint against municipality of Söderköping concerning unreasonably
long procedures.
[22“ ipr uv‘r xv‘vu •sy ‡k ‚s…mstd‡qq‡ uˆ k ¢r’tmstd ‡qq‡ vhrh yrer… •ˆt¡v…– †sdy wˆm…ur† ‰tˆ‘
the moment when the information has been released, not from the moment the supplier has actually
received it.
[23“ ‡q€qyiv ‚m†–‘r…u ˆ‰ {ˆmtu ˆ‰ z””rsx ™ws…vs ™ˆmuprt… ™•r†r…„ ‰tˆ‘ ‡‡pqip‡q€qh
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13. e-Competitions
National Competition Laws Bulletin
September 2012
The Swedish Competition Authority issues a
decision concerning pecuniary sanctions
imposed on a contracting authority for
infringements of public procurement law
(Akademiska Hus Norr)
»¼½¾½¿À ÁÂÃÄÅÆ ÇÈÉÆÂȽʽ¿ËÀ ÌÍÊÍνÏÀ »Í¿ÆËÅÉ¿ÏÐÑÅ¿½ÏÐÁ½¿ÍÄËŽÏÀ ÁÂÃÄÅÆ
undertaking, Construction
ÒÓÔÕÖ×ØÙÚÛÜÔÝÖÝÖÚÞßàÝØÚáÖÝâãäÚÞåàááÔÞ×æÔáåÔÝçèééÒÔÜÝÔÛêÔáëìéëèíÖîÔïðñòëìéëèßåóÕÔÛÖ×åóôà×õÚááßö
Emanuela Matei, e-Competitions | N° 49159, www.concurrences.com
I. Introduction
The building project in this case involves the modification andexpansion of an existing construction,
namely the building of the University of Agricultural Sciences situated in the municipality of Umeå.
The value of the contract is of approximately SEK 39 million. The Swedish Competition Authority
(’SCA’) found a case of illegal direct award, since a contract notice should have been published
according to certain formalities, as stipulated in article 15 Swedish Procurement Act (’LOU’) in
order to enable all potential providers to receive information about the forthcoming contracts. SCA
has decided to bring proceedings before the Court requesting that the contracting authority shall be
ordered to pay a public procurement damage fine of SEK 3 million. The legal base for this action can
be found in the third indent of the article 17(1) LOU, which stipulates that a general administrative
court may decide whether an illegal award of contracts shall be sanctioned with a public
procurement damage fine. The legal analysis presented by SCA in the present decision is mainly
concerned with the concept of ’body governed by public law’ which is enshrined in article 1(9) of the
Directive 2004/18.
II. The legal framework
The pre-legislative scrutiny of draft bills is a very important source of law in the Swedish legal order,
which is used for the interpretation of statutory provisions. The Directive 2007/66/EC with regard to
improving the effectiveness of review procedures concerning the award of public contracts [1÷ øùú
been implemented into the national legal order on the 15/07/2010 through an amendment made to
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20. e-Competitions
National Competition Laws Bulletin
September 2012
The Administrative Court of Appeal of
Jönköping orders that the award procedure
shall be recommenced for violation of the
transparency principle (PWC v Västervik, KPMG
v Västervik)
ƒrstsuv wy€‚„ …‡ˆ„y‡s‰suv ‘‚’‚u”ˆ‡‰•‚ˆuv –s‰st‚s’ —•u‚‡y’˜v ™yt‚„‚•
review, Public undertaking, Services
defghgjklmkgno pqrlk qs duuomv qs wxhyxughz{ |} joukof~lo |}|{ pmjo €|‚|{ ƒ„p n …†jkolngy
defghgjklmkgno pqrlk qs duuomv qs wxhyxughz{ |} joukof~lo |}|{ pmjo €}‡‚{ ˆƒ‰Š n …†jkolngy
Emanuela Matei, e-Competitions | N° 49223, www.concurrences.com
I. Introduction
The tender documentation of the award procedure concerned with a procurement contract of audit
services by Västervik municipal authorities comprised erroneous information. The error consisted in
disregarding the provisions of the Swedish constitutional law, namely the article 12(4) IG and its
requisite that the delegation of administrative assignments involving exercise of public authority can
only be done in accordance with law. This error has led to an order to recommence the award
procedure and the finding that the false information implies a breach of the transparency principle.
II. Legal framework
The award of public contracts by or on behalf of Member States authorities has to comply with the
principles deriving from the Treaties, such as equal treatment, non-discrimination, mutual
recognition, proportionality and transparency [1‹Œ Ž‘’“ ”Ž’ •–—˜™š šŽ›œ’šœž —Ž‘ š’œ™›
value, provisions on national procurement procedures should be adopted and implemented in order
to ensure that these principles are given actual effect and public procurement is opened up to
competition [2‹Œ
Contracts shall be awarded on the basis of objective criteria that ensure compliance with the
principles of transparency, non-discrimination and equal treatment. Consequently the contracting
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21. –œŸŽ’™œ™ž žŸ˜˜ — —˜ œŽ Ž•œ ž ’ š’™œ’™ ™œŸ’ ¡the most economically advantageous
tender’ or ‘the lowest cost’, taking into account that in the latter case they are free to set adequate
quality standards by using technical specifications or contract performance conditions [3‹Œ
If a supplier considered that it had been wrongly treated during an award procedure and if the time
allows, it should make a complaint directly to the contracting authority before instituting
proceedings before a court. In accordance with article 16 of the Swedish Procurement Act (‘LOU’), a
supplier may bring proceedings for a review before an administrative court if it suspects that a
contracting authority has infringed the procurement law and the violation entails or may entail that
the supplier would suffer damages. If the administrative court deems that there has been such a
violation and that damages have arisen or may arise for the supplier, the administrative court may
decide that the procurement process should be recommenced or corrected.
III. The parallel disputes brought before the Swedish Court
The contract in question relates to audit services to be procured by Västervik municipal authorities,
i.e. an assignment concerning mail reception, collection and storage of the data, and attendance
reporting. The audit contract has been awarded initially to PWC and afterwards to KPMG following
the finding that the tender of PWC did not indicate any price for the second year in the case of the
assignment concerning mail reception, collection and storage of the data and attendance reporting.
According with the first decision of the Swedish Court of first instance, the tender of PWC should
have been excluded from the evaluation phase, while the second decision accepted the complaint of
PWC that the tender documentation was seriously vitiated, thus the award procedure should be
recommenced and the applicant should be allowed to participate. I will make a summary of the
parallel proceedings before the first instance and respectively, the appeal instance.
A. Case 8409-11 KPMG v Västervik
In the tender documents, point 4 step 2 ‘Service requirements’, it has been asserted that the named
requirements are compulsory in nature and only tenders that fulfil them would be taken into
consideration for the evaluation phase. The award consists of eight assignments and a total price
indication is required for each of the following five assignments A, B, D, G and H for a period of two
consecutive contractual years. The assignment ‘H’ refers to the following compulsory tasks: mail
reception, collection and storage of the data and attendance reporting. In line with article 1(9) LOU
disregarding the compulsory requirements amounts to a violation of the principle of equal treatment.
The contracting authority has the obligation to verify that all incoming tenders satisfy the
compulsory requirements. PWC had indicated a fixed price of SEK 15,000 for the first year and zero
for the second year with the proviso that the municipality council will take over these tasks during
the second year. KPMG submits that PWC‘s tender did not comply with the requirements and thus it
shouldn’t have been taken into consideration for the evaluation phase. KPMG‘s tender was the
second ‘most economically advantageous tender’ after the one submitted by PWC, therefore KPMG
could have suffered damages and the prerequisite for action under article 16(6) LOU was fulfilled.
KPMG contends that a re-examination of the tenders should be ordered by the Court and PWC‘s
tender should not be considered at that occasion. On the 29/02/2012 the Administrative Court of
First Instance has upheld the claims of the applicant. The applicant has been successful.
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23. ž ”˜˜ž Ž–œž™ œŸ žšŽ• Ž” ÀÁ ˜Œ
The provisions of the Swedish constitution exclude the delegation of the exercise of public powers
unless it is done in accordance with law. Despite these preventing legal norms the activities in
question have been included in the tender documentation and the lack of price indication for the
named assignment has almost led to the exclusion of one of the suppliers. The significant error has
been deemed to constitute a violation of the transparency principle [10‹ ™› œŸ ·›™›¸ Ž” œŸ ’œ™š˜
1(9) LOU and according to 16(6) LOU the infringement in question entails or may entail that the
supplier would suffer damages. In sum the remedy prescribed by the Court of Appeal is that the
procedure for the award of the audit contract shall be recommenced.
Even if the article 1(9) LOU implements article 2 of the Directive 2004/18/EC stating that ‘
contracting authorities shall treat economic operators equally and non-discriminatorily and shall act
in a transparent way’ the activities comprised by assignment ‘H’ per se fall outside the scope of
Union law. The conclusion provided by the Court that the erroneous information specified by the
contracting authority, not paying due regard to the national constitutional law, falls foul of the duty
to act in a transparent way can be seen as an extensive interpretation of the transparency principle.
[1‹ ¾’œ™š˜ ¯®º± Ž” œŸ  ™žŸ Ã’Žš–’·›œ ¾šœ ®¡ÄÅÁƱ ®Ä¸ Ž· Ž””›œ˜™¸ –••Ÿ› ˜™›¸ ¹¼¼Ç»¯¼º¯±Œ
[2‹  ˜žŽ Èš™œ˜ ¹ É Ã’Ž•Žž˜ ”Ž’ Ê™’šœ™‘ Ž› •–—˜™š •’Žš–’·›œ ¶Å²»¹¼¯¯»¼Ëº°Œ
[3‹  ˜žŽ Èš™œ˜ Ç É Ã’Ž•Žž˜ ”Ž’ Ê™’šœ™‘ š™œ ž–•’ ™› ”ŽŽœ›Žœ ¹Œ
[4‹ ¾’œ™š˜ ¯¹®Ì± ½ÍÎ ¾ ·™›™žœ’œ™‘ ”–›šœ™Ž›ž ·³ — ˜¸œ œŽ ˜Žš˜ –œŸŽ’™œ™žŒ ¾ ·™›™žœ’œ™‘
functions may also be delegated to other legal entities or to individuals. If such a function involves
the exercise of public authority, it may only be delegated in accordance with law.
[5‹ ¾’œ™š˜ ®¯°± ²¾Î µŸ ˜Žš˜ –œŸŽ’™œ™ž ”Ž˜˜Ž™›¸ œŸ š™ž™Ž› Ž” œŸ šŽ–›š™˜ ·³ ˜¸œ œŸ
administration of a certain matter to private companies or individuals. Administrative tasks
concerning the exercise of public authority in the sense of article 12(4) IG may only be delegated in
accordance with law.
[6‹ Ï– ¸·›œž ™› ¶ž ¼Çɯ¯ ™žž– Ž› ¹Ë»¼»¹¼¯¹ —³ ¶Ž–’œ Ž” ¾••˜ Ž” ÏЛÑЕ™›¸ › ¶ž
4660-10 issued on 11/02/2011 by Court of Appeal of Göteborg.
[7‹ Ï– ¸·›œ ™› ¶ž Ë̼ºÉ¯¯“ KPMG v Västervik issued on the 29/02/2012.
[8‹ Å› œŸ ••˜ Ž” ¹¼»¼º»¹¼¯¹“ ™› ¶ž ¯°ºÌɯ¹“ ®šœ™Ž› —’Ž–¸Ÿœ ™› •’˜˜˜ ™œŸ œŸ Ž› ™›™œ™œ
by PWC Case 842-12) KPMG contended that the decision of the Administrative Court of First
Instance from the 27/04/2012 should be overruled and pleaded at first hand that the decision should
be annulled and the PWC application for appeal should be dismissed and at second hand that the
application should be rejected as unfounded. Västervik municipal authorities have not responded to
the case, while PWC claimed that the appeal should be rejected as unfounded. The Court of appeal
found no reason to overrule the decision of the Administrative Court of First Instance. KPMG did
neither have the quality of litigant nor the one of a concerned party in the trial before the
Administrative Court of First Instance, where the contested decision from the 27/04/2012 had been
issued.
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24. ´9‹ À¶Ï“ ¯¯ Ï–˜³ ¯ºË¿“ Case 107/84“ Commission v Germany,[1985] ECR 2655, paragraphs 14 and
15; 19 January 1994, Case C-364/92“ SAT Fluggesellschaft,[1994] ECR I-43, paragraph 30; and 1st
July 2008, Case C-49/07“ MOTOE, [2008] ECR I-4863, paragraph 24
[10‹ ½›  ™žŸ“ œŸ Ž’™¸™›˜ ˜›¸–¸“ Ž” œŸ ¬– ¸·›œ žœ³ž œŸœÎ ‘Felet får mot denna bakgrund
anses innebära att de upphandlande myndigheterna brutit mot transparensprincipen.’
Emanuela Matei | University of Lund | emanuella.matei@gmail.com
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26. ™ ™ ! # $!! %!' $ !( )0'1 ) 21 1™2' )1! ! 10)
regulation in question is not violated, the rule of strict liability shall be applicable. It is not necessary
to prove that the deed was either intentional or caused by negligence in order to impose a sanction
consisting in damage fines [1“3
Within the limits imposed by public procurement law the decision instance should have a large
discretion to deem the appropriate amount of fine. It must be said that the government bill
amending the public procurement act has stated that the alternative sanctions shall be effective,
proportionate and deterring. The purpose of the government bill is to attain a system of sanctions
based on the proportionality between the amount of fine and the gravity of the infringement. Illegal
direct awards constitute the most serious type of infringements of procurement rules, fact that
implies that the amount of fine should be significant in this case. The public procurement fine can be
used in parallel with or instead of civil damages, periodic penalties, criminal penalties and
confiscation. The aim was to improve the enforcement of the procurement rules and in this sense the
Swedish government has considered that public procurement fines represent more effective means
than the criminal penalties [2“3
The public procurement damage fine shall not exceed 10% of the value of the contract in question
and the maximum charge that can be imposed is of SEK 10 million. When calculating the amount of
the damage fine, special consideration should be given to the gravity of the violation. No fine shall
be charged in minor cases and the fine may be waived in exceptional circumstances [3“3
III. The factual framework
On the 26 October 2011 the Agency made a preliminary booking with Grand Hotel Stockholm for the
organization of the next year staff banquet. The confirmation of the booking has been done at the
end of January 2012. The rental agreement of SEK 58,650had as object a conference hall for the day
time and a dance hall for the evening party for the 23 May 2012. An additional amount of SEK
38,350 was due for guard and security services.On the 13 March a verbal agreement has been
concluded between the Agency and the Grand Hotel concerning the purchase of food and beverages.
The actual value for food and beverages comprising both conference and dinner was of SEK 511,908.
The total value of the contract is of SEK 608,908, which amounts to approximately EUR 64,180.
IV. Illegal direct award
The definition of a direct award is given by article 2(23) LOU, which is the conclusion of a public
procurement contract without any prior tendering. The notice (2011:1575) of the Swedish
Government informs about the thresholds that must apply regarding the public services contracts [4
“3 4 #'0 !( )1 ™!)™ 21 !( 567 89@AB9@ C6DE 8FAG@9H 2™ 21 !#2!01'I '11
threshold value [5“ !( GA@BPAQF9 !( 567 C6DE R99A999H3 4 #'0 !( ™!)™ 21 120 0 )
the thresholds in the Directive 2004/18/EC, thus the matter falls outside the scope of the EU
directive.
Hotel services are included at position 17 in the LOU Annex 3 (B-services). According to article 17(4)
LOU the value shall be calculated jointly in accordance with article 15(3)(a) LOU in cases where
several direct award procedures of the same type have been conducted during a financial year [6“3
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27. e™™!) 2$ ! )2™' GQCSH TUD )1!' #'0 (!) 2)™ ) 21 !( GQV !( 567 GA@BPAQF9A
which represents SEK 284,000. Since SEK 608,908 is larger than the threshold in article 15(3) LOU
the direct award procedure is excluded by law. The present public procurement procedure
constitutes an illegal direct award.
V. Public Procurement Damage Fine
The case-law of the Court steers away from a broad interpretation of the derogations and requires
anyone seeking to rely on them to provide proof that the derogations do not go beyond the limits laid
down for the scenarios in question [7“3 e™™!) 2$ ! #2 !( 5WeA )1 ™1 21 ! !(
illegal direct award, the most serious type of infringement of procurement law [8“3 e !) 2)I
illegal direct award should be sanctioned with fines calculated as 7% to 8% of the contract value [9“3
SCA has calculated the value of the contract as amounting to SEK 608,908. A damage fine of SEK
45,000 represents circa 7.5% of the contract value and according to the assessment of the
circumstances in the present case it stands for a proportionate sanction in regard of the relatable
infringement of procurement law.
VI. Conclusion
The essential requisite in this case is the rule in the third indent of article 15(3a) LOU: ’the
contracting authority shall take into account the direct awards of the same type concluded during
the financial year when it calculates the value of the contract of public procurement’. The
contracting authority is precluded from splitting the contract in order to circumvent the provisions
of the public procurement act. Can the following expenses be considered separately from each other
and in this way allowing the reduction of the value of the illegal contract and the attenuation of the
prescribed amount of damage fine? It can be observed that the expenses for dinner alone exceed the
threshold of SEK 284,000.
For the sake of clarity, it must be said that according to the pre-legislative documents there is no
interdiction to split a contract in several lots and the contracting authority has the competence to
calculate the value of the contract. The contracts of the same type concluded by the operating units
of a contracting authority during a financial year must be jointly accounted. Transactions of public
procurement being related as content and connected from a temporal perspective shall be regarded
as one contract [10“3 X ™1 '' )1™2!1 )' ! 1Y # %2$ '™ !
the same day, thus it is obvious that they constitute direct awards of the same type.
[1“ `!#)Y 2'' R99BaG9bG@9A $ GBS3
[2“ `!#)Y 2'' ™2 supra footnote 1, page 197.
[3“ c!) Y!) 2'1 ™!™)2$ )'# '$' ()Y!)%A 1 Emanuela Matei, The Swedish
Competition Authority issues a decision concerning pecuniary sanctions imposed on a contracting
authority for infringements of public procurement law (Akademiska Hus Norr), 11 septembre 2012,
e-Competitions, n° 491593
[4“ `!#)Y d!2™ 9@aGRaGG 5 '1! W!YY2112! Regulation (EC) No 1177/2009A !( S9
November 2009 amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European
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28. €)'2Y !( W!0™2' 2 )1™ !( 2) '2™2! )1!' 1 (!) )!™ 0)1 (!)
award of contracts (OJ L 314, 1.12.2009, p. 64–65H3
[5“ e)2™' R !( W!YY2112! E$0'2! C6WH d! GGPPaR99B C'2™2! )1!' 1 (!)
procedures for the award of contracts).
[6“ 4 ™!)™2$ 0!)2I 1'' % 2! ™™!0 2)™ ) 1 !( 1Y I ™!™'0
during the relevant financial year.
[7“ 6WfA G9 g)™ GB@PA Case 199/85A Commission v Italy, [1987] ECR 1039; 4 October 1991, Case
C 367/89h Richardt and Les Accessoires Scientifiques, [1991] ECR I 4621; 16 September 1999,
Case C 414/97h Commission v Spain; and 2 June 2005, Case C 394/02h Commission v Greece,
[2005] ECR I 4713. RÅ-Notes, RÅ 2009 note 134: ’Since the derogation in [art 4(5)(2)] LOU is not
applicable in the present case the contracting authority has infringed the public procurement rules
by failing to comply with the advertising obligation.’
[8“ X Y (!!! R
[9“ e Y221)2# W!0) !( e' 5!™%!'YA W1 GS9QiGRp e Y221)2# W!0) qrstA W1
286-12; Administrative Court Linköping, Case 3834-11 and Administrative Court Luleå, Case
2166-11 and Case 434-12
[10“ `!#)Y 2'' ™2 supra footnote 1, page 293
Emanuela Matei | University of Lund | emanuella.matei@gmail.com
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29. e-Competitions
National Competition Laws Bulletin
March 2013
The Swedish Competition Authority decides
that the practice of excluding suppliers from
‘tax havens’ is incompatible with EU law
(Municipality of Kalmar)
uvwxwy ‚„…†‡ˆ ‰‘ˆ„w’wy” •–— ‚‡yˆ‡‰†w ‘˜ ‰‘‰‘”‡‘y–†‡”d ‚„…†‡ˆ
undertaking, Bank, Services
efghijk lmnogpipimq rspkmtipu vwmqxsttgqjygtxgpz{ | }~tk €‚ƒ{ }sqiio~„ipu m… w~„n~t
Emanuela Matei, e-Competitions | N° 51267, www.concurrences.com
I. Introduction
OECD’s list of uncooperative tax havens has become the world’s shortest black list, only two small
islands in Pacific being listed as uncooperative tax havens. The use of legal methods to modify a
corporation’s financial situation in order to lower the amount of corporate tax owed is a form of tax
avoidance. This practice differs from tax evasion, which is illegal The eventuality of transferring
profits obtained by private undertakings from activities that can be associated in any way with
public resources on the pursuit of tax avoidance, even if the pursuit is attained by legal methods is a
sensitive matter in Sweden.
The possibility to reduce the fiscal burden is deemed as constituting an illegitimate competitive
advantage by the contracting authority of Kalmar. Swedish Competition Authority disavows this
presumption of tax avoidance and establishes the illegal character of the public procurement
practice adopted by the concerned local authority establishing the breach of several general
principles of law: non-discrimination, equal-treatment, proportionality and transparency.
II. Relevant law
Contracting authorities shall treat all suppliers equally and in a non-discriminatory manner and they
shall conduct their procedures for public procurement in an open manner. Furthermore a public
procurement procedure must respect the principles of mutual recognition and proportionality [1†‡
The award of contracts concluded in the Member States on behalf of the local authorities is subject
to the respect of the principles of the Treaty and in particular to the principle of freedom of
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30. ˆ‰Š‹ˆ‹Œ ‰Ž ‰‰‘’ “‹ ”•–Œ—–”˜‹ ‰Ž Ž•‹‹‰ˆ ‰Ž ‹‘™š˜–‘“ˆ‹Œ ™Œ “‹ ”•–Œ—–”˜‹ ‰Ž Ž•‹‹‰ˆ ‰
provide services and to the principles deriving there from, such as the principle of equal treatment,
the principle of non-discrimination, the principle of mutual recognition, the principle of
proportionality and the principle of transparency [2†‡
According to article 10(2) LOU, Swedish Act on Public Procurement [3†’ Ž–Ž“ –Œ‹Œ’ ™ ‘›””˜–‹• —™Œ
be excluded from a public procurement procedure, if it has not complied with its fiscal or social
security duties in its country of establishment or in the country where the award procedure takes
place. Article 45(2) of the Directive 2004/18/EC stipulates that any economic operator may be
excluded from participation in a contract, where that economic operator has not fulfilled obligations
relating to the payment of social security contributions and of taxes in accordance with the legal
provisions of the country in which he is established or with those of the country of the contracting
authority.
III. Factual situation
The case concerns a practice adopted by municipality of Kalmar (hereinafter the ’Addressee’)
according to which all potential tenderers have been obliged to adhere to a Code of Conduct. Among
other provisions the Code precluded any connection of any kind with jurisdictions defined as tax
havens. The Swedish Competition authority (hereinafter the ’SCA’) has asked for sources of
information in order to determine according to what standard a jurisdiction can be defined as a tax
haven.
The Addressee has referred to the OECD standard, namely to the so-called OECD’s list of
uncooperative tax havens issued in 2000. The list has been amended several times and in 2012 only
two jurisdictions were listed on the black list: Nauru and Niue. Already as this point the SCA
considered that it is unreasonable to require the potential tenderers not to have relations to two
small islands in the Pacific and that such a condition is de facto ineffective. The Addressee also
agrees with this fact, but nevertheless wants to maintain in place the Code of Conduct. It is also
explained that the Code is going to be amended in order to provide a better response to the changed
situation as reflected by the OECD data.
IV. The present SCA decision
The main argument of the Addressee relies on its interpretation of Michaniki jurisprudence [4†‡
Since the Addressee considers that tax avoidance implies the achievement of illegitimate competitive
advantages, it argues that the concerned practice results in a better equality of treatment. SCA
clarifies that the issue of eligibility, i.e. access to the procedure, is at stake in the present case and
underlines the fact that only the requirement of ’no connection to any tax havens’ makes subject to
the present decision.
The requirement of ’no connection to any tax havens’ is enshrined in the Code of Conduct that must
be complied with in order to satisfy the eligibility criterion. A tenderer who refuses to give its
consent cannot qualify to participate in the public procurement. Therefore despite the fact that the
Addresseeundertakes to amend the Code of Conduct a decision from the SCA is still necessary. The
actual possibility to participate is hindered by the named requirement.
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32. ²›‘–Ž–—™–‰Œ š‹–Œ ™Š™–˜™š˜‹‡ «“‹ ”•‹Š‹Œ–‰Œ ‰Ž ™³ ‹Š™‘–‰Œ –‘ ™Œ ‰Š‹••––Œ •‹™‘‰Œ •‹˜™–Œ ‰ “‹
public interest, capable of justifying a restriction on the exercise of freedom of movement
guaranteed by the Treaty [11†‡ ´Œ “‹ ‰“‹• “™Œ – –‘ Ž‰• Œ™–‰Œ™˜ ˜™± ‰ ‹‹•ˆ–Œ‹ “‹ —‰Œ‹Œ ™Œ
scope of fiscal obligations and for the competent tax or social security authorities to establish
whether the candidate is in compliance with his obligations with a view to his admission to a
procedure for the award of a public contract [12†‡
It is settled case-law that tax revenue shortfalls do not constitute an overriding reason in the public
interest [13†‡ «“‹ ‘–ˆ”˜‹ Ž™— “™ —‹•™–Œ ”‰‹Œ–™˜ ‘›””˜–‹•‘ ˆ–“ š‹˜‰Œ ‰ ™ •‰›” ‰Ž —‰ˆ”™Œ–‹‘
having some sort of connection with a tax haven can not in itself justify a general presumption of tax
avoidance [14†‡ µŠ‹Œ –Ž SCA recognizes the commendable ethical character of the practice under its
review, it expresses serious doubts that such a measure may be compatible with EU law, more
exactly with the principle of proportionality.
The principle of transparency requires that all the conditions and detailed rules of public
procurement procedure must be drawn up in a clear, precise and unequivocal manner in the notice
or contract documents so that, first, all reasonably informed tenderers exercising normal caution
can comprehend their correct meaning and interpret them in the same way and, secondly, the
contracting authority is able to establish whether the tenders submitted fulfil the criteria applying to
the relevant contract [15†‡
From the information provided by the Addresseeit could be understood clearly that the applicable
definition of tax haven was the one proposed by the OECD and the term ’connection’ was not
explained at all. It is up to each and every potential supplier to understand these terms to the best of
their abilities. It is very plausible that normally cautious tenderers may not comprehend their
correct meaning and may interpret them in a divergent manner and secondly, the contracting
authority cannot establish whether the tenders submitted fulfil the criteria applying to the relevant
contract. The concerned practice is found to be in breach of the transparency principle.
C. Conclusion of the Decision in question
SCA assessment concludes that the requirement imposed by the Addresseethat each and every
potential supplier is precluded from having any form of connection to a tax haven violates several
general principles of law: non-discrimination, equal treatment, transparency and proportionality.
D. Interconnected general principles of EU law
A system of undistorted competition, such as that provided for by the Treaty, can be ensured only if
equality of opportunity is secured as between the various economic operators [16†‡ «“‹•‹ ™•‹ Œ‰
explicit provisions in the Treaty referring to public procurement, the relevant principles being
developed by the case-law on the interpretation of the provisions of EU directives on public award
procedures. The principle of equal treatment entails the principle of transparency and these two
interrelated principles require that all suppliers no matter if they constitute factual or only potential
tenderers must generally be on an equal footing and have equality of opportunity in formulating the
terms of their participation applications and their tenders.
In particular, potential tenderers must be in a position of equality as regards the scope of the
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Emanuela Matei | e-Competitions | N° 51267
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