1. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish system for Review and Remedies by Jens Fejoe

2. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Introduction: Background for the Danish Public Procurement Regime l Dir. 2004/18 + Dir. 2004/17 Acts and Ministerial Orders l Dir 89/665+ Dir 92/13 Act on The Complaints Board for Public Procurement Jens Fejø

3. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Introduction: Background for the Danish Public Procurement Regime (cont.) l Danish Ministerial Order No 937/2004 on the procedures for the award of public supply contracts, public service contracts and public works contracts (implemen- ting Dir 2004/18) l Ministerial Order No 936/2004 on Dir 2004/17 The directives are Annexes to the Orders Jens Fejø

4. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish System of Complaints l The Complaints Board for Public Procurement l Ordinary Courts l Secretariat for the Competition Authority Jens Fejø

5. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish Complaint Board for Public Procurement l Legal foundation l Composition l Competences l Working methods Jens Fejø

6. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish Complaints Board for Public Procurement l Legal foundation: Act No. 415/2000 as amended by Act 572/2007 on the Com- plaints Board for Public Procu- rement Jens Fejø

7. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish Complaints Board for Public Procurement l Composition 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 Jens Fejø

8. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish Complaint Board for Public Procurement l Composition l In each case/“chamber”: 1 Judge + 2 expert members. May be decided to have 2 Judges + 4 expert members Jens Fejø

9. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish Complaints Board for Public Procurement Competences l 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 l Awarding compensation for an economic loss l Preliminary measures Jens Fejø

10. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU 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

11. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish System of Complaints l 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 Jens Fejø

12. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish System of Complaints l 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 Jens Fejø

13. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Article 234 of the EEC Treaty and the Complaints Board l 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

14. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Danish System of Complaints l 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 Jens Fejø

15. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Danish Implementation of the EU Public Procurement Directives into Danish Law l Recommandations et.al. from the Secre- tariat of the Competition Council Not binding Guiding Jens Fejø

16. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Appeal to the Ordinary Courts and the Role of these l Procurement matters are practically never brought to the ordinary courts in first instance l It can be estimated that about 5 percent of the Complaints Board's decisions are changed by the ordinary courts Jens Fejø