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Cases Flashcards

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1
Q

signals

A 
see - is the case
ie - for example (not legal, only writing)
eg - good example
cf - compare (affirms)
contra - contradicts/against
but (see)- other contradicting cases
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2
Q

The principles cases
ET/ND
T
P

A

Fabricom - set up def as equal=equal, unequal=unequal, and know difference
Telaustria - T, even if not in directives, GIVES EFFECT to other principles
Medipac - P, a) as appropriate for objectives, and b) notgo too far

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3
Q

Teckal

A

Laid initial conditions on Vertical on-house contracting
- if fulfilled dont need to send to tender
(tickle rhymes with vertical)

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4
Q

Stadt-trein-i-gung Hamburg

A

Horizontal in-house contracting
State horizontal train goes in/to cooperation
(Waste disposal b/t 4 Landkreise)

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5
Q

vertical cooperation test

A

org depend + econ depend + absence PPP

control criteria) (essentiality criteria

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6
Q

Stadt Halle

A

any private involvement = independence from State (so need to tender)
State stays in the Hall

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7
Q

Three conditions of horizontal cooperation

A

1- common public interest in making, not buying
2- no private parties
3- contractual relations (even if new org)

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8
Q

Three directives-based horizontal coop conditions

A

1- contract furthers common objectives,
2- cooperation only guided by public interest
3- 20% or less private sector participation

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9
Q

Three types of rejections - IUU

A

Irregular (too low, late, bad)
Unacceptable (too high, good)
Unsuitable (irrelevany or incapable or no needs)
(Its not regular to accept a suit)

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10
Q

SIAC case

A

RWINDT standard

(see a reasonable tenderer? Ick!?!

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11
Q

Beentjes
Concordia
EVN

A
  • Transparency + ET imply no unrestrivted freedom of choice
    (Beetles have limits)
  • small number of bidders dont mean procedure violate ET
    (concordance can be with small too)
  • criteria must be verifiable (Even eva verifies)
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12
Q

ATI’s 3 limbs for not disclosing sub-criteria

A

1- dont alter main criteria
2- dont influence bid prep
3- no -discriminatory
(hard to meet, so just publish)

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13
Q

MLS v Sec of State for Defence

A

Need to publish CONSECUENCES of not meeting thresholds

Must Learn ‘Sequences

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14
Q

Two currents in tender specificity
Evropaiki Dynamiki v. EMSA
and
Lianakis, TNS Dimarso v. Vlaams Geweit

A

strict (Dynamics) v. flexible (Lines) evaluation method

with Proof IT and; Euro Institute für Gender Eq. going nuts to say no need to disclose…CA leeway to adapt (2018!)

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15
Q

SAG Slovensko

A

Need to investigate abnormally low bids
Also uphold intl conventions (reject if slave labour/ polluting Ganghes
(investigate SAGging bids)

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16
Q

2 low balling cases
FP McCann v. Dept for Regional Dev.
SRCL v NHS Comm Board

A
  • won damages b/c not allowed to explain why low bid
    (McCain to Explain)
  • but no absolute requirement to investigate (only if suspect convention Annex X violation)
    See Real Convention Losses
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17
Q

Varney; also NATS Services v. Gatwick Airport

A

Court deference to CA decisions

Defer to Barney, and Nats…Natasha

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18
Q

Strabag BE v Parliament
and
Clestra Hauserman v Parliant

A

resulted in Commission’s Guidance on investigating low low prices!
Investigate the strawbag and the hoserman

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19
Q

Abbvie v. NHS Albion

A

Upheld complex scoring like “dummy price mechanisms”and unmetered access models
(Pharma complex pricing)

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20
Q

Word Perfect Translation v Min Pub Expend and Reform
and; the
Ideal bidder

A

Notification letter tells RELATIVE advantages viz winner
A pre-conceived optimal bid(der) - not allowed as no ET
(no ‘perfect’ bidder)

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21
Q

Manova and; Cartera dell’Adda

A

no obligation to clarify
(wording about clarifications in tender docs key)
(No need to clarify a manova, or carrettera to the Addis)

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22
Q

Tideland Signal **

A

apply proportionality to rejection for errors than COULD HAVE been clarified
(like Pizzo - dont reject for not paying fee when can ‘clarify’)
cf. MATI Sud, Lavorgna and Leadbitter
Leads to “manifest error” doctrine - serious error
Give a ‘signal’ about error
or need to proportion waves/tides of errors

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23
Q

RPS v. Kildare County Council

A

Rejection letter must give details
“duty togive reasons”
(Rejection Poorly ‘Splained)

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24
Q 
Discloure cases 
Alstrom transport v. Eurostar
Amaryllis v Treasury
Croft house Care v Durhan CC
contra: Pearson v Covanta
A

rejection letter limited so govt helps w/ discovery
govt info not protected
other bidders info no absolute protect
but: need to show disclose needed

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25
Q

Energy Solutions EU v Nuke Commission Authority

A

Cant order no paper trail to stop discovery

cant nuke the evidence

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26
Q

NACE

A

Nomenclature statistique des activites economiques
(CPV alternative) - common procurement vocab
(about activities, not orgs, like NUTS)

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27
Q

NUTS

A

Nomenclature des unites territoriales statistiques

about orgs

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28
Q

debarment/ blacklisting

A

when court rules cant participate in tenders (from “conviction by final judgment”)

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29
Q

exigency

A

can overlook faults b/c need goods/services urgently

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30
Q

illegal direct award

A

purchase from friends (legal version = neg. procedure w/o prior pub)

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31
Q

VEAL

A

Voluntary ex-ante transparency (notice)
when contract notice not published
(not meat) :p
(Voluntary Ex-Ante “Letter” (Transparency Notice))

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32
Q

variant

A

change to negotiated procedure

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33
Q

declaration of ineffectiveness

A

remedy during challenge, after award, to invalidate winner

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34
Q

capitalization v solidarity

A

decide if ‘aid’ illegal

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35
Q

Transport Reg vs. Utilities Reg

A

PP + “allowable state aid” (via PSCs which target PSOs)

PP + management of monopoly power as ‘controlled substance’

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36
Q

competitive
dialogue
negotiation

A

several bidders
talk about tender’s first phase
haggle over price & terms in 2nd phase

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37
Q

selective advantage

A

advantage above/beyond normal market conditions

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38
Q

SGEI

a seggi, or seggies

A

services of general economic interest

like public goods eligible for subsidization

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39
Q

general economic interests

A

social goods

social costs are gay

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40
Q

ancillary restraint

A

like joint price setting

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41
Q

concerted undertaking

A

undertaking or association of undertakings in anti-comp behave (ie bid rigging)

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42
Q

cover bidding
bid rotation
bid suppression

A

decide who will win, others throw match

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43
Q

Public service contract (psc)

A

contract w/ allowable state aid aimed to service PSO

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44
Q

Public service obligation PSO

A

loss-leading good/service given under solidarity objective

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45
Q

entrust /entrustment

A

authority granted under TR for PPTS

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46
Q

PPTS

A

Public Passenger Transport Services

Transports with potential PSO and thus “aidable”

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47
Q

La Cascina

A

must allow for self-cleaning (and allow if made restitution)

clean your own casita

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48
Q

Ciclet

A

CA can contact foreign tax and SS authorities

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49
Q

Forposta

A

gives CA latitude to define “grave professional misconduct” (including non-perform on prev contract)
misconduct is ‘for posting’ (like online)

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50
Q

Vossloh Laeis

A

need CA decision penalizing EO for anti-trust before can exclude
(about DE rail and; switches company cartel)
(must explicitly cite dont trust because of lice, cant just ghost them)

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51
Q

MT Hojgaard und Zublin

A

consortia/legal form decisions revolve around effect on competition(not technicalities)
dead partner company ok if survivor performs as per original terms
can carry on without a ‘hoe guard’

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52
Q

SIAC Construction v Mayo CC

A

CA discretion ok unless violate ET, T, O
if no principles violations, need “manifest error in judgment” to overturn CA decision
for heavens sake, only sue if manifest error

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53
Q

Ingsteel and; Metroslav

A

accept proof of eligibility at CA discretion

(check on steel factory/Slav’s metro only if want to

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54
Q

Ballast Nedam I/II

A

consortium members brought in for TECHNICAL eligibility must have substantive role
ballast group members must give a dam

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55
Q

CoNisMA Pippo Pizzo

A

ditto with FINANCIAL ELIGIBILTY

Connie’s ma and her pippi pizza need to participate, not just pretty face

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56
Q

Sun? Construzione

A

limits on consortia must be in tender docs

the sun isnt the limit on consortia structuring

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57
Q

Dominico Politiano and; Partner Apelski Dariusz

A

restricting competition bad

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58
Q

Esa Projekt

A

cant claim you did more tha you did

¡en ‘esa’ proyeccto hacia todo!

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59
Q

Wednesbery

A

“unreasonableness” test in manifest error in judgment

Was unreasonable on Wednesday berry

60
Q

Fabricom

cf Intrasoft and eVigilo

A

gives incumbant right to argue exclusion

Fabric con, ‘Intra’ software co and Vigil co. incumbants who have right to ‘esplain’

61
Q

Proof IT v. Euro Institute 4 Gender Eq.

A

3 part test to neutralize incumbant
(cheap, easy, fair)
cf European Dynamics v Commission
have to prove can still bid, dynamic incumbants can talk their way in

62
Q

BAM v NTMA

A

late submit ok as tender doc says so
(THE case about late upload)
Bam! Not Too (Late) if in My Agreement

63
Q

JB Leadbitter v Devon CC

A

proportionality rule for rejecting late tenders

Cant just kick out the lead biter without explanation

64
Q

Azam v Legal Services Commission

A

even regulate deadline, need “reasonable judgment” depends on fault and tender ‘contract’
Bam…and Azaam, reasonable prayer times

65
Q

Unitron

A

sub-contractors buying for CA must follow PPL

Tron buying for CA, part of same unit

66
Q

Telaustria**

A

concessions case - need to ad to potentially interested parties
(Telefonadress also?)
Tell Austria to concede

67
Q

SECAP

cf Commission v Ireland

A

cross-border interest makes EU PPL

See Capt. across border, esp. in Ireland

68
Q

Sidey Scott

A

CA knows market - so their judgment important for ‘cross-border interest.’
Sidney and Scotty know the market!

69
Q

Ruffert and ;RegioPost***

A

subject matter test for ESL/G

No environment for a Ruffian or a King (Regis)

70
Q

Concordia Bus Finland***

A

LtSM about ESG and must uphold Principles & other points
cant make tender only 1 company qualifies for
(outside of Finland requirements must CONCORD with subj. matter)

71
Q

Lianakis

A

cant use selection criteria as award and visa versa
Also cant choose bid, then bidder
Comm v GR - cant use past as award criteria
cant use own weights w/o disclosing
Flexible line, but line b/t select and award

72
Q

Energy Solutions v NDA

cf - ATI EAC and Comm v IE

A

can revise faulty selection criteria mid-stream
(Ati - can add sub-criteria up to opening)
(Comm v. IE, opening is limit of change)
BUT/ CONTRA - EVN/Weinstrom
(use energy solution to fix tender and dont tell (NDA)
4 criteria - can change

73
Q

Pressetext***

A

material modification to contract if ‘materially different’
(contract change easier).
If you press the text, you change it - and brwak the procedure

74
Q

Dr Falk Pharma v DAK Gebunteit

A

a help yourself contract not a FA

of all folks can join, aint an FA, and aimt Geisunteit (healthy)

75
Q

FENIN ***

A

defines solidarity objective to know if unfair competition w capitalization objective (legal state aid)
in solidarity with the ferns

76
Q

EasyPay and Finance Engineering

A

affirms Fenin by using ‘inseparable connection’ to solidarity objective
its easy to get paid when financially engineer a (solodarity) link to state

77
Q

Brentjens *
cf FFSA
Albany
Pavlov

A

no solidarity objective if profit-making motive
no solodarity if capitalization
no solidarity if optional membership
…if entitlements above basic scheme

78
Q

Enirisore v Sotacarbo

A

selectivity = state aid

Eine bidderis sore, and sotto (solo) carbon gets whacked free

79
Q

Gemo

A

‘selective advantage’ given when EO relieved of costs/liabilities
sel advant cheats at game-o

80
Q

advantage (formula)

A

MEIP test + Altmark criteria

81
Q

ARGE

A

no auto exclusion for state aid recipients

upheld in CoNISMa

82
Q

Consorci

A

exclude public authority iff state aid causes ‘abnormally’ low price

83
Q

Makedonia Metro & Michaniki Loos

A

PP remedies only beforecontract (then contract remedies)

84
Q

BAL v Commission

A

ES ferry operators get govt to buy seats - for social objectives. Social purpose not enough

85
Q

Atlas broadband

A

subsidized broadband service hurts competititon

86
Q

Pentland Ferries v Scottish Ministers *

A

subsidized ferries not illegal if “general economic interest”

87
Q

Clusterfond Seed

A

presumption of legality (state aid) if PP award

88
Q

London Underground &

Clonee/Kells Motorway

A

PP not prima facie evidence that no state aid

89
Q

Cumbria Broadband

A

state aid b/c gave imcumbant advantage

90
Q

Welsh Networks

and N. Irish Broadband and Next Generation Broadband

A

Comm liked way CA designed tender to simulate competition

91
Q

give procurement rights to individuals

A

Francovich (so important, its reversed)

92
Q

Factortame I, II and III

A

“sufficiently serious” breach of EU law must be redressed

93
Q

Energy Solutions v Nuclear DeCommissioning Authority

A

private law remedies need lower standard for ‘serious breach”

94
Q

Fosen-Linjen I and II

A

reconsiders Energy Solutions, no lower standard

95
Q

Van Colson

A

compensation needs to be adequate for damage plus deterrsnt effects

96
Q

Marina del Mediterraneo

A

all PPL decisions s.t. judocial review

97
Q

The Three Standing Cases

A

1- Werner Hackermüller - can deny standing for someone excluded early
2- Espace Trianon - all consortium members must agree to objection, but damage claims individually
3- Amt Azienda Transport - “interest” = participation (unless restricted by callfrom tendering)

98
Q

Commission v Austria

A

notification of award is not the contract itself

99
Q

Uniplex

A

limitation periods require prompt challenge and start from actual or constructive knowledge of error

100
Q

Cooperativa Animazione

A

time period effective iff give reasons for losing

101
Q

Idrodimanica Spurgo Velax v Acquedotto Pugliese

A

consortium members’ withdraw comprises “significant modification” of award decision … must retender

102
Q

MedEval

A

cant have a strict deadline for damages actions - depends on knowledge

103
Q

Spijker

A

Used Francovich, Brasserie du Pecheur, and Factorame to make state liable for breech of contract

104
Q

Brasserie du Pêcheur

A

cant forbid lost profits as ‘head of damage’

105
Q

Ministro dell’Interno v Fastweb

A

affirms 3 conditions for ineffectiveness

thinks doesnt need to advertise, published intent w/ justification, and waited 10 days

106
Q

Oftalma Hospital

A

its Court that decides cross-border interest, not CA

107
Q

Archus & Gama v Polskie Gormiatwo Naftowe i Gazownictwo

A

Three part test for CA asking for clarification
1- same request to all
2- no new tender
3- doesnt help/hurt any EOs

108
Q

TNS Dimarso

A

dont need to tell weights if

a) MEAT (weights or list order)
b) no unannounced sub-criteria
c) fulfill ATI conditions
d) cant change criteria

109
Q

Finn Frogne

A

follows Pressetext, its new contract unless allows for modification, material change if:

a) smaller EO could have won,
b) intentions immaterial
c) unpredictable subject for new contract no excuse

110
Q

e-vigilo

A

semi-flipped burden of proof -

CA must show NOT CoI, not EO to show

111
Q

Ecoservice Projektai

A

If EO accuses CA of CoI, CA must investigate

112
Q

Comm v Spain, Comm v Netherlands

A

if Comm waits too long to complain, losses right to seek correction

113
Q

Agriconsulting v Comm

A

allows subpoena EU instit docs
if would have lost, unlawful conduct immaterial
(about low tenders)

114
Q

Strack v Comm

A

can refuse disclosure if hurts decision-making ability

115
Q

Examples of cases upholding EU discretion

A
  • Renco v Council (2013) - abnormally low tenders not prob
  • Tideland Signal v Comm (2002) - serious error
  • Embassy Limo c Parliament (1998)
116
Q

Vakakis v Comm

A

didnt check ou a CoI…bad

damages opportunity cost as prob of winning other tenders

117
Q

Europaiki Dynamiki (2008)

A

loser says winner was a criminal, and Comm didnt investigate

118
Q

Adia Interim v Comm

A

must give precise reason for decision

unstated criteria to have dedicated service ok

119
Q

European Dynamics Lux v Comm

A

‘manifest error’ doesnt exist b/c everything Comm does is legal

120
Q

Vanbreda v Comm

A

interim measures given to make final decision “fully effective”
loss of opportunity based on prob
rises from main case and must have “good prob of success”

121
Q

Communicade Group v Comm

A

judge wide discretion for interim measures
EU bodies “presumed to be lawful”
cf SCK, FNK v Comm, Atlantic Line v Comm

122
Q

Elitaliana v Eulex Kosovo

A

Eulex isnt an offical org, must sue legal body

cf Fly Holding v Comm -only sue legal/nat persons

123
Q

Carmen v Comm

Alscase Intl Corp Sefvice v EU Parliament

A

compliant tenderer might still have standing

124
Q

Dredging Intl v ESMA

A

have standing if rejection annulled

125
Q

FIAMM v. Council and Comm

A

non-contractual liability of EU bodies for PPL
(unlawful conduct, real damage, and causal link)
cf Bergaderm, AFCON v Asdor, KYDEP, Flying Holding and Agriconsulting

126
Q

Globe v Comm

A

if impossible to quantify loss, can get parties to negotiation

127
Q

EasyPay and Finance Engineering

A

can avoid being declared an “economic activity” if “inseparably connected” to solidarity activity

128
Q 
Splitiing economic and solidarity objective
Albany
FFSA
Pavlov
KATTNER STAHIBAU
A

Albany- optional membership
FFSA- entitle depend on contributions and fon rsults)
Pavol- entitlements above basic
Kattner- mixed depend on importance of various elements

129
Q

Atlas Broadband Infrastructure Scheme

A

best practice for ensuring rents accrue to consumers, not producers
market terms/price prima facie strong support for no aid

130
Q

Portland Feeries v Scot Ministers

A

subsidized ferries not illegal, as GEI.

contra: BAL v Comm, Spanish bone it by buying up seats

131
Q

Clusterfonds Seed decision

A

“presumption of innocence” for state aid offense if awarded compensation via tender
(even if exonerated for contract to vertical cooperant, still might fail state aid hurdle)
contra- London Underground and Clonee/Kells, cant use PP as immunity from state aid prosecution

132
Q

London Underground and Clonee/Kells motorway

A

huge benefits not aid b/c from ‘competitive’ neg prod.

133
Q

Cumbria Broadband

A

bad practice to Atlas. Neg. Prod. and left base with company after expiration

134
Q

Piepenbrock v Kreis Duren

A

outsourcing to another govt body still a ‘public contract’ even if throug a private entity set up by govt

135
Q

Berlington Hungary

A

slot machines used in centre of HU still cross-border interest because of day trippers coming ot use them

136
Q

Tecnoedi Costruzioni v Commune di Fossano

A

abnormal low bid shouldnt be ruled out immediately. Need positive determination by CA based on contract specifics

137
Q

LtSM cases

A

Concordia bus - need 4 conditions

EVN - cant be linked to general aspects of bidder, must be contract specific

138
Q

Beentjes

A

employing LT unemployed ok as contract point

139
Q

Dutch Coffee

A

cant use labels requirements without “or equivalemt”

Max Havelaar label and EKO

140
Q

Regiopost (following Ruffert)

A

gotta pay min wage. Not a social issue, but a follow the law issue

141
Q

Autorita Garante

A

FA must specify who can use, and max purchase allowed

142
Q

Woods Bldg Srvices v

Milton Keynes Council

A

cant carry notrs from one stage to another

asbestos removal

143
Q

Faraday case

A

first dec of ineffect. case. Unsucessfully used VEAT Notice (because veal is just vol. ex-ante transparecy…need the word notice after).

144
Q

Acoset

A

no need to tender for each consortium AND each project.
(so once win, allowed to manage as like)
‘once you ackt, then it’s set’

145
Q

Mannesmann

A

a public interest mandate makes you a CA (by personal jurisdiction)
the man is a man if public interested

146
Q

Cambridge case

A

if get more than 50% funding, suddenly become CA for that year

EU Procurement Law (3 decks)

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