Greece ∙ Revisiting the Public Procurement Directives After the Pandemic

Abstract

Article 47 of the Charter of Fundamental Rights must be interpreted as precluding national legislation which requires a litigant lodging an application for an interlocutory injunction or an action for review to pay flat-rate court fees of an amount impossible to foresee, where the contracting authority has opted for a procedure for the award of a public contract without prior publication of a contract notice or, as the case may be, without subsequent publication of a contract award notice, with the result that it can be impossible for the litigant to ascertain the estimated value of the contract and the number of separately contestable decisions adopted by the contracting authority on the basis of which those fees were calculated. [...]that litigant can be unable to foresee the amount of the flat-rate fees which he or she must pay. 102. […] [...]national legislation which requires a litigant to pay flat-rate court fees of an amount that is impossible to foresee before that person lodges his or her application for an interlocutory injunction or action for review makes it practically impossible or excessively difficult for him or her to exercise his or her right to an effective remedy, and therefore infringes Article 47 of the Charter, including where that amount represents only a tiny fraction of the value of the contract(s) concerned. [...]facing a situation of apparent opacity and no prior publication, the Court decided to directly apply Article 47 of the Charter of Fundamental Rights, even though the Public Procurement Directives alone regulate review procedures in a more restrictive way. The document draws the attention of awarding authorities to the following points: (a.) the rules allowing for negotiated procedure without prior publication are to be interpreted restrictively, (b.) the burden of proof that extraordinary circumstances occur is borne by the contracting authority, (c.) Member States are prohibited from passing national laws that make more flexible the Directives' requirements for public procurement through negotiated procedures without prior publication, (d.) negotiated procedures without prior publication are permitted only under the conditions prescribed by the Directives, and strictly after providing full and special reasoning for the use of such an awarding procedure, (e.) according to Greek law 4412/2016, the conditions prescribed by the Directives for the use of negotiated procedure without prior publication do apply regardless of contract's value, (f.) European Commission has already launched EU PILOT proceedings against Member States for illegally awarding contracts by use of negotiated procedure without prior publication, (g.) obligations arising from Directive 2014/24 article 50, regarding the notification of contract's conclusion, are still valid, (h.) before using negotiated procedure without prior publication, greek public bodies are obliged to ask for Hellenic Single Public Procurement Authority's agreement.