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© OECD 
A joint initiative of the OECD and the European Union, principally financed by the EU 
Public procurement related decisions of the Court of Justice of the EU and their use in Croatia 
SELECTED JUDGEMENTS OF THE COURT OF JUSTICE OF THE EUROPEAN UNION ON PUBLIC PROCUREMENT (2006-2014) 
Teja Kolar, Croatia 
Podgorica, 8 October 2014
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 
1
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 
2
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 
3
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 
4
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 
5
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 
6
A joint initiative of the OECD and the European Union, principally financed by the EU 
Court of Justice of the European Union 
7
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 
8
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) 
9
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 
10
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 
11
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 
12
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 
13
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 
14
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 
15
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 
16
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. 
17
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 
18
A joint initiative of the OECD and the European Union, principally financed by the EU 
Thank you! 
19

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Public procurement related decisions of the Court of Justice of the EU and their use in Croatia presentation by Teja Kolar

  • 1. © OECD A joint initiative of the OECD and the European Union, principally financed by the EU Public procurement related decisions of the Court of Justice of the EU and their use in Croatia SELECTED JUDGEMENTS OF THE COURT OF JUSTICE OF THE EUROPEAN UNION ON PUBLIC PROCUREMENT (2006-2014) Teja Kolar, Croatia Podgorica, 8 October 2014
  • 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 1
  • 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 2
  • 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 3
  • 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 4
  • 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 5
  • 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 6
  • 8. A joint initiative of the OECD and the European Union, principally financed by the EU Court of Justice of the European Union 7
  • 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 8
  • 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) 9
  • 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 10
  • 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 11
  • 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 12
  • 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 13
  • 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 14
  • 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 15
  • 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 16
  • 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. 17
  • 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 18
  • 20. A joint initiative of the OECD and the European Union, principally financed by the EU Thank you! 19