This presentation was made by Peter Gjortler, expert, at the SIGMA webinar held on 11 May 2021, on effective and efficient review of appeals.

1. © OECD
THIRD ONLINE WORKSHOP FOR
PROCUREMENT REVIEW BODIES
EFFECTIVE AND EFFICIENT
REVIEW OF APPEALS
Oral hearing procedures at the PRB
Peter Gjortler, SIGMA Expert
Webinar 11 May 2021

2. Procurement Review Bodies
Article 1 of EU Directive 89/665 (2007/66)
• Member states must provide effective and
rapid review
 Review body may be ordinary court or quasi-
judicial complaint board
• Access for persons having or having had
interest in obtaining a contract
 Access for persons having been or risks being
harmed by the award of a contract
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3. Institutional Format
National Variations
• Ordinary Courts
 Belgium, France, Ireland, Lithuania, Netherlands,
Portugal, Sweden, United Kingdom
• Specialised Review Body
 Austria, Bulgaria, Cyprus, Czech Republic, Denmark,
Estonia, Finland, Germany, Hungary, Luxembourg,
Poland, Romania, Slovenia, Croatia
 Balkan countries, including Albania and Macedonia
 Ukraine
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4. Powers of PRB
Article 2 of EU Directive 89/665 (2007/66)
• Review body must have powers to:
 Award interim measures
 Set aside unlawful administrative decisions
 Award damages (may be assigned separately)
• Submission of claim must entail immediate
suspension of signing of contract
 Must last until decision is made on interim
measures or on complaint
 Must last at least for standstill period
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5. Remedies of PRB
Article 2 of EU Directive 89/665 (2007/66)
• Interim measures
 Not required in general to be automatic
 May weigh all interests, including public interest
• Damages
 May require prior finding of unlawful decision
• Contract
 Effect on signed contract to be determined by
national law
 Except where ineffectiveness applies (Article 2d)
 Possible obligation to rescind (Case C-503/04)
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6. Enforcement of PRB Decisions
Article 2 of EU Directive 89/665 (2007/66)
• Non-judicial review body
 Written reasons for decisions must be given
• Right of appeal
 Judicial review, or
 Review by another special body which equivalent
to a court or tribunal and independent of both the
contracting authority and the review body
• Decisions must be enforceable
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7. Oral Procedure
Human and Fundamental Rights
• Article 6 of ECHR
 Everyone is entitled to a fair and public hearing
within a reasonable time by an independent and
impartial tribunal established by law
• Article 47 EU Charter
 Everyone is entitled to a fair and public hearing
within a reasonable time by an independent and
impartial tribunal previously established by law.
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8. Right to Oral Hearing
ECHR Guidelines to Article 6
• Litigants have a right to a public hearing
because this protects them against the
administration of justice in secret with no
public scrutiny
 The obligation to hold an oral hearing is not
absolute
• Absence of a hearing on appeal may be
justified by the special features of the
proceedings concerned, provided a hearing has
been held at first instance
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9. Refused Oral Hearing
ECtHR Case Law
• No. 63235/00 Eskelinen v Finland
 The applicants had been able to request a hearing,
although it had been for the courts to decide
whether a hearing was necessary, but the courts
had given reasons for refusing to hold a hearing
• No. 24016/05 Ever v Turkey
 Legal issues had not been especially complex
 Necessary to conduct the proceedings promptly
 Dispute had concerned textual and technical
matters that could be adequately determined on
the strength of the case file
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10. General Court of the EU
Article 106 of the Rules of Procedure
• The procedure shall include a hearing arranged
either of the General Court’s own motion or at
the request of a main party
 Any request for a hearing made by a main party
must state the reasons for which that party wishes
to be heard
• If there is no request
 The General Court may, if it considers that it has
sufficient information available to it from the
material in the file, decide to rule on the action
without an oral part of the procedure
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11. Court of Justice of the EU
Article 76 of the Rules of Procedure
• Any reasoned requests for a hearing shall be
submitted within three weeks
• On a proposal from the Judge-Rapporteur and
after hearing the Advocate General
 The Court may decide not to hold a hearing
• If it considers, on reading the written pleadings
or observations lodged during the written part
of the procedure, that it has sufficient
information to give a ruling
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12. Purpose of the Hearing
Point 52 of the Practice Directions of the CJEU
• The decisive criterion for holding a hearing is
 Not so much whether an express request has been
made to that effect
• As the assessment made by the Court itself
 As to the added value of that hearing and its
potential contribution to the outcome of the
dispute.
• A hearing is therefore arranged by the Court
 Whenever it is likely to contribute to a better
understanding of the case and the issues raised by
it
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13. Practical Application
Danish Complaint Board
• Presidency
 Pool of 11 appeal court and municipal court
justices
• Professional
 Pool of 20 specialists (practitioners and lawyers)
• Appointed by the Minister of Economy
 Term of office 4 years (part-time)
 Professional members proposed by 9 public
authorities and 11 trade associations
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14. Legal Standing
Danish Complaint Board
• Legal interest
 Persons participating in the procurement
 Persons with an interest in participating
 Passivity in stages of procurement
• Consumer and Competition Authority
 Rarely uses this competence
• Designated entities (Minister of Economy)
 67 trade associations
 Similar associations in other Member States
 Do not need to demonstrate legal interest
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15. Procedure
Danish Complaint Board
• Information
 Complainant must inform contacting entity
• Facts and legal issues
 Contracting entity must submit report
 Board may impose provision of information
• Pleadings
 Submitted in writing
 Oral hearing constitutes an exception
 Board may recommend use of lawyers
 Board may allow intervention by third parties
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16. Benefits and Disadvantages
Oral Procedure
• Benefits
 Direct communication between parties (lawyers)
and PRB members
 Using dialogue to demonstrate weakness in
opponent argumentation
 Answering questions from PRB
• Disadvantage
 Increased costs for PRB and parties
 Needs extensive preparation by lawyers
 You cannot win a case at oral procedure, but you
can easily lose a case
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