2. A joint initiative of the OECD and the European Union, principally financed by the EU
Publication
The publication gives a review of important decisions of the Court of Justice of the European Union (CJEU) on public procurement.
The review covers the CJEU decisions made from January 2006 to April 2014.
Consists of 10 chapters
335 pages
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3. A joint initiative of the OECD and the European Union, principally financed by the EU
Content of the publication
Chapter 1:
―The role and composition of the CJEU
―The way in which legal actions are brought and conducted before the CJEU
―The content and publication of CJEU judgements and
―The consequences of non-compliance with those judgements
Chapters 2 – 10:
―9 selected procurement issues
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4. A joint initiative of the OECD and the European Union, principally financed by the EU
Content of the publication (…)
Chapter 2
―Material scope
Chapter 3
―Scope – meaning of a “body governed by public law”
Chapter 4
―“In house” procurement
Chapter 5
―Grounds for exclusion of economic operators
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5. A joint initiative of the OECD and the European Union, principally financed by the EU
Content of the publication (…)
Chapter 6
―Qualification of economic operators
Chapter 7
―Contract awards
Chapter 8
―Technical specifications
Chapter 9
―Changes to contracts
Chapter 10
―Remedies
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6. A joint initiative of the OECD and the European Union, principally financed by the EU
Approach to individual topics
Each chapter:
―starts by placing the issue in context
―states relevant provisions in the directives
―briefly comments on the approach of the CJ based on case law
―provides a more detailed case law analysis
―where a CJ case is of particular importance, a comprehensive case analysis and a copy of the full CJ judgement are provided
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7. A joint initiative of the OECD and the European Union, principally financed by the EU
Purpose
The publication may be particularly useful to the following authorities in Montenegro:
―State Commission for the Control of Public Procurement Procedures
―in deliberating on similar matters
―Public Procurement Authority
―in giving opinions and drafting legislation
―Administrative Court
―in making decisions on appeals against decisions of the State Commission
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8. A joint initiative of the OECD and the European Union, principally financed by the EU
Court of Justice of the European Union
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9. A joint initiative of the OECD and the European Union, principally financed by the EU
Court of Justice of the European Union
The CJEU is responsible for:
securing the enforcement of EU law in cases where it has been breached
developing and interpreting the provisions of EU law
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10. A joint initiative of the OECD and the European Union, principally financed by the EU
Court of Justice of the European Union
Seat of the Court: Luxembourg
Structure of the CJEU: consists of several sub- courts
Court of Justice (CJ)
General Court (GC)
Other specialised courts – Civil Service Tribunal
Rules of Procedure: Rules of Procedure of the Court of Justice of 25 September 2012 (OJ L 265, 29.9.2012), as amended on 18 June 2013 (OJ L 173, 26.6.2013)
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11. A joint initiative of the OECD and the European Union, principally financed by the EU
Court of Justice of the European Union
CJ and GC – sit in “Chambers”
One judge per each Member State
Also nine advocates general in the CJ
President: Vassilios Skouris
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12. A joint initiative of the OECD and the European Union, principally financed by the EU
Court of Justice of the European Union
Two types of actions are most commonly used in relation to public procurement:
1.actions for failure to fulfil obligations
―“infringement procedures” under article 258 TFEU
2.references for preliminary ruling
―under article 267 TFEU
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13. A joint initiative of the OECD and the European Union, principally financed by the EU
Actions for failure to fulfil obligations
The European Commission may take actions for failure to fulfil obligations under article 258 TFEU
These actions may concern:
―infringement of the Treaties, secondary EU legislation or general law principles
―lack of action – failure to adopt required provisions
―courses of action that do not comply with the Treaties, secondary EU legislation or general law principles
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14. A joint initiative of the OECD and the European Union, principally financed by the EU
Actions for failure to fulfil obligations
Infringement procedures are brought by the Commission against an EU Member State and not against an individual authority within the Member State
The Member State is responsible for the actions of that authority
An infringement procedure is usually prompted by an individual complaint to the Commission
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15. A joint initiative of the OECD and the European Union, principally financed by the EU
Actions for failure to fulfil obligations
For example:
A company participating in a procurement procedure may submit a complaint to the Commission
The Commission may also commence an action on its own initiative, after having discovered facts or provisions that are allegedly inconsistent with EU law
The directives on public procurement have not been implemented on time or have been implemented incorrectly
A contracting authority fails to comply with EU procurement rules
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16. A joint initiative of the OECD and the European Union, principally financed by the EU
References for preliminary ruling
Under article 267 TFEU, the CJ has jurisdiction to give preliminary ruling concerning:
interpretation of the Treaties
validity and interpretation of acts of EU institutions, bodies, offices and agencies
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17. A joint initiative of the OECD and the European Union, principally financed by the EU
References for preliminary ruling
Only a court of tribunal of a Member State may refer questions to the CJ
The term “court of tribunal” is an EU law concept
Questions asked by the national court must concern the interpretation of EU law
If EU law is not at issue the question is inadmissible
The CJ may be willing to “reformulate” the question so that it is admissible and can be considered
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18. A joint initiative of the OECD and the European Union, principally financed by the EU
Effects of the CJ ruling
The national court that had made the reference is bound by the interpretation of the CJ when deciding the case
Other courts may treat the ruling as authoritative
Member States that have provisions affected by a CJ ruling are obliged to change any provisions that are not in line with the CJ’s interpretation.
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19. A joint initiative of the OECD and the European Union, principally financed by the EU
Publication of judgements of the CJ
online: http://curia.europa.eu
Croatian version since the date of accession
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20. A joint initiative of the OECD and the European Union, principally financed by the EU
Thank you!
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