Cases Flashcards
signals
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
The principles cases
ET/ND
T
P
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
Teckal
Laid initial conditions on Vertical on-house contracting
- if fulfilled dont need to send to tender
(tickle rhymes with vertical)
Stadt-trein-i-gung Hamburg
Horizontal in-house contracting
State horizontal train goes in/to cooperation
(Waste disposal b/t 4 Landkreise)
vertical cooperation test
org depend + econ depend + absence PPP
control criteria) (essentiality criteria
Stadt Halle
any private involvement = independence from State (so need to tender)
State stays in the Hall
Three conditions of horizontal cooperation
1- common public interest in making, not buying
2- no private parties
3- contractual relations (even if new org)
Three directives-based horizontal coop conditions
1- contract furthers common objectives,
2- cooperation only guided by public interest
3- 20% or less private sector participation
Three types of rejections - IUU
Irregular (too low, late, bad)
Unacceptable (too high, good)
Unsuitable (irrelevany or incapable or no needs)
(Its not regular to accept a suit)
SIAC case
RWINDT standard
(see a reasonable tenderer? Ick!?!
Beentjes
Concordia
EVN
- 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)
ATI’s 3 limbs for not disclosing sub-criteria
1- dont alter main criteria
2- dont influence bid prep
3- no -discriminatory
(hard to meet, so just publish)
MLS v Sec of State for Defence
Need to publish CONSECUENCES of not meeting thresholds
Must Learn ‘Sequences
Two currents in tender specificity
Evropaiki Dynamiki v. EMSA
and
Lianakis, TNS Dimarso v. Vlaams Geweit
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!)
SAG Slovensko
Need to investigate abnormally low bids
Also uphold intl conventions (reject if slave labour/ polluting Ganghes
(investigate SAGging bids)
2 low balling cases
FP McCann v. Dept for Regional Dev.
SRCL v NHS Comm Board
- 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
Varney; also NATS Services v. Gatwick Airport
Court deference to CA decisions
Defer to Barney, and Nats…Natasha
Strabag BE v Parliament
and
Clestra Hauserman v Parliant
resulted in Commission’s Guidance on investigating low low prices!
Investigate the strawbag and the hoserman
Abbvie v. NHS Albion
Upheld complex scoring like “dummy price mechanisms”and unmetered access models
(Pharma complex pricing)
Word Perfect Translation v Min Pub Expend and Reform
and; the
Ideal bidder
Notification letter tells RELATIVE advantages viz winner
A pre-conceived optimal bid(der) - not allowed as no ET
(no ‘perfect’ bidder)
Manova and; Cartera dell’Adda
no obligation to clarify
(wording about clarifications in tender docs key)
(No need to clarify a manova, or carrettera to the Addis)
Tideland Signal **
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
RPS v. Kildare County Council
Rejection letter must give details
“duty togive reasons”
(Rejection Poorly ‘Splained)
Discloure cases Alstrom transport v. Eurostar Amaryllis v Treasury Croft house Care v Durhan CC contra: Pearson v Covanta
rejection letter limited so govt helps w/ discovery
govt info not protected
other bidders info no absolute protect
but: need to show disclose needed
Energy Solutions EU v Nuke Commission Authority
Cant order no paper trail to stop discovery
cant nuke the evidence
NACE
Nomenclature statistique des activites economiques
(CPV alternative) - common procurement vocab
(about activities, not orgs, like NUTS)
NUTS
Nomenclature des unites territoriales statistiques
about orgs
debarment/ blacklisting
when court rules cant participate in tenders (from “conviction by final judgment”)
exigency
can overlook faults b/c need goods/services urgently
illegal direct award
purchase from friends (legal version = neg. procedure w/o prior pub)
VEAL
Voluntary ex-ante transparency (notice)
when contract notice not published
(not meat) :p
(Voluntary Ex-Ante “Letter” (Transparency Notice))
variant
change to negotiated procedure
declaration of ineffectiveness
remedy during challenge, after award, to invalidate winner
capitalization v solidarity
decide if ‘aid’ illegal
Transport Reg vs. Utilities Reg
PP + “allowable state aid” (via PSCs which target PSOs)
PP + management of monopoly power as ‘controlled substance’
competitive
dialogue
negotiation
several bidders
talk about tender’s first phase
haggle over price & terms in 2nd phase
selective advantage
advantage above/beyond normal market conditions
SGEI
a seggi, or seggies
services of general economic interest
like public goods eligible for subsidization
general economic interests
social goods
social costs are gay
ancillary restraint
like joint price setting
concerted undertaking
undertaking or association of undertakings in anti-comp behave (ie bid rigging)
cover bidding
bid rotation
bid suppression
decide who will win, others throw match
Public service contract (psc)
contract w/ allowable state aid aimed to service PSO
Public service obligation PSO
loss-leading good/service given under solidarity objective
entrust /entrustment
authority granted under TR for PPTS
PPTS
Public Passenger Transport Services
Transports with potential PSO and thus “aidable”
La Cascina
must allow for self-cleaning (and allow if made restitution)
clean your own casita
Ciclet
CA can contact foreign tax and SS authorities
Forposta
gives CA latitude to define “grave professional misconduct” (including non-perform on prev contract)
misconduct is ‘for posting’ (like online)
Vossloh Laeis
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)
MT Hojgaard und Zublin
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’
SIAC Construction v Mayo CC
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
Ingsteel and; Metroslav
accept proof of eligibility at CA discretion
(check on steel factory/Slav’s metro only if want to
Ballast Nedam I/II
consortium members brought in for TECHNICAL eligibility must have substantive role
ballast group members must give a dam
CoNisMA Pippo Pizzo
ditto with FINANCIAL ELIGIBILTY
Connie’s ma and her pippi pizza need to participate, not just pretty face
Sun? Construzione
limits on consortia must be in tender docs
the sun isnt the limit on consortia structuring
Dominico Politiano and; Partner Apelski Dariusz
restricting competition bad
Esa Projekt
cant claim you did more tha you did
¡en ‘esa’ proyeccto hacia todo!
Wednesbery
“unreasonableness” test in manifest error in judgment
Was unreasonable on Wednesday berry
Fabricom
cf Intrasoft and eVigilo
gives incumbant right to argue exclusion
Fabric con, ‘Intra’ software co and Vigil co. incumbants who have right to ‘esplain’
Proof IT v. Euro Institute 4 Gender Eq.
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
BAM v NTMA
late submit ok as tender doc says so
(THE case about late upload)
Bam! Not Too (Late) if in My Agreement
JB Leadbitter v Devon CC
proportionality rule for rejecting late tenders
Cant just kick out the lead biter without explanation
Azam v Legal Services Commission
even regulate deadline, need “reasonable judgment” depends on fault and tender ‘contract’
Bam…and Azaam, reasonable prayer times
Unitron
sub-contractors buying for CA must follow PPL
Tron buying for CA, part of same unit
Telaustria**
concessions case - need to ad to potentially interested parties
(Telefonadress also?)
Tell Austria to concede
SECAP
cf Commission v Ireland
cross-border interest makes EU PPL
See Capt. across border, esp. in Ireland
Sidey Scott
CA knows market - so their judgment important for ‘cross-border interest.’
Sidney and Scotty know the market!
Ruffert and ;RegioPost***
subject matter test for ESL/G
No environment for a Ruffian or a King (Regis)
Concordia Bus Finland***
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)
Lianakis
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
Energy Solutions v NDA
cf - ATI EAC and Comm v IE
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
Pressetext***
material modification to contract if ‘materially different’
(contract change easier).
If you press the text, you change it - and brwak the procedure
Dr Falk Pharma v DAK Gebunteit
a help yourself contract not a FA
of all folks can join, aint an FA, and aimt Geisunteit (healthy)
FENIN ***
defines solidarity objective to know if unfair competition w capitalization objective (legal state aid)
in solidarity with the ferns
EasyPay and Finance Engineering
affirms Fenin by using ‘inseparable connection’ to solidarity objective
its easy to get paid when financially engineer a (solodarity) link to state
Brentjens *
cf FFSA
Albany
Pavlov
no solidarity objective if profit-making motive
no solodarity if capitalization
no solidarity if optional membership
…if entitlements above basic scheme
Enirisore v Sotacarbo
selectivity = state aid
Eine bidderis sore, and sotto (solo) carbon gets whacked free
Gemo
‘selective advantage’ given when EO relieved of costs/liabilities
sel advant cheats at game-o
advantage (formula)
MEIP test + Altmark criteria
ARGE
no auto exclusion for state aid recipients
upheld in CoNISMa
Consorci
exclude public authority iff state aid causes ‘abnormally’ low price
Makedonia Metro & Michaniki Loos
PP remedies only beforecontract (then contract remedies)
BAL v Commission
ES ferry operators get govt to buy seats - for social objectives. Social purpose not enough
Atlas broadband
subsidized broadband service hurts competititon
Pentland Ferries v Scottish Ministers *
subsidized ferries not illegal if “general economic interest”
Clusterfond Seed
presumption of legality (state aid) if PP award
London Underground &
Clonee/Kells Motorway
PP not prima facie evidence that no state aid
Cumbria Broadband
state aid b/c gave imcumbant advantage
Welsh Networks
and N. Irish Broadband and Next Generation Broadband
Comm liked way CA designed tender to simulate competition
give procurement rights to individuals
Francovich (so important, its reversed)
Factortame I, II and III
“sufficiently serious” breach of EU law must be redressed
Energy Solutions v Nuclear DeCommissioning Authority
private law remedies need lower standard for ‘serious breach”
Fosen-Linjen I and II
reconsiders Energy Solutions, no lower standard
Van Colson
compensation needs to be adequate for damage plus deterrsnt effects
Marina del Mediterraneo
all PPL decisions s.t. judocial review
The Three Standing Cases
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)
Commission v Austria
notification of award is not the contract itself
Uniplex
limitation periods require prompt challenge and start from actual or constructive knowledge of error
Cooperativa Animazione
time period effective iff give reasons for losing
Idrodimanica Spurgo Velax v Acquedotto Pugliese
consortium members’ withdraw comprises “significant modification” of award decision … must retender
MedEval
cant have a strict deadline for damages actions - depends on knowledge
Spijker
Used Francovich, Brasserie du Pecheur, and Factorame to make state liable for breech of contract
Brasserie du Pêcheur
cant forbid lost profits as ‘head of damage’
Ministro dell’Interno v Fastweb
affirms 3 conditions for ineffectiveness
thinks doesnt need to advertise, published intent w/ justification, and waited 10 days
Oftalma Hospital
its Court that decides cross-border interest, not CA
Archus & Gama v Polskie Gormiatwo Naftowe i Gazownictwo
Three part test for CA asking for clarification
1- same request to all
2- no new tender
3- doesnt help/hurt any EOs
TNS Dimarso
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
Finn Frogne
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
e-vigilo
semi-flipped burden of proof -
CA must show NOT CoI, not EO to show
Ecoservice Projektai
If EO accuses CA of CoI, CA must investigate
Comm v Spain, Comm v Netherlands
if Comm waits too long to complain, losses right to seek correction
Agriconsulting v Comm
allows subpoena EU instit docs
if would have lost, unlawful conduct immaterial
(about low tenders)
Strack v Comm
can refuse disclosure if hurts decision-making ability
Examples of cases upholding EU discretion
- Renco v Council (2013) - abnormally low tenders not prob
- Tideland Signal v Comm (2002) - serious error
- Embassy Limo c Parliament (1998)
Vakakis v Comm
didnt check ou a CoI…bad
damages opportunity cost as prob of winning other tenders
Europaiki Dynamiki (2008)
loser says winner was a criminal, and Comm didnt investigate
Adia Interim v Comm
must give precise reason for decision
unstated criteria to have dedicated service ok
European Dynamics Lux v Comm
‘manifest error’ doesnt exist b/c everything Comm does is legal
Vanbreda v Comm
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”
Communicade Group v Comm
judge wide discretion for interim measures
EU bodies “presumed to be lawful”
cf SCK, FNK v Comm, Atlantic Line v Comm
Elitaliana v Eulex Kosovo
Eulex isnt an offical org, must sue legal body
cf Fly Holding v Comm -only sue legal/nat persons
Carmen v Comm
Alscase Intl Corp Sefvice v EU Parliament
compliant tenderer might still have standing
Dredging Intl v ESMA
have standing if rejection annulled
FIAMM v. Council and Comm
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
Globe v Comm
if impossible to quantify loss, can get parties to negotiation
EasyPay and Finance Engineering
can avoid being declared an “economic activity” if “inseparably connected” to solidarity activity
Splitiing economic and solidarity objective Albany FFSA Pavlov KATTNER STAHIBAU
Albany- optional membership
FFSA- entitle depend on contributions and fon rsults)
Pavol- entitlements above basic
Kattner- mixed depend on importance of various elements
Atlas Broadband Infrastructure Scheme
best practice for ensuring rents accrue to consumers, not producers
market terms/price prima facie strong support for no aid
Portland Feeries v Scot Ministers
subsidized ferries not illegal, as GEI.
contra: BAL v Comm, Spanish bone it by buying up seats
Clusterfonds Seed decision
“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
London Underground and Clonee/Kells motorway
huge benefits not aid b/c from ‘competitive’ neg prod.
Cumbria Broadband
bad practice to Atlas. Neg. Prod. and left base with company after expiration
Piepenbrock v Kreis Duren
outsourcing to another govt body still a ‘public contract’ even if throug a private entity set up by govt
Berlington Hungary
slot machines used in centre of HU still cross-border interest because of day trippers coming ot use them
Tecnoedi Costruzioni v Commune di Fossano
abnormal low bid shouldnt be ruled out immediately. Need positive determination by CA based on contract specifics
LtSM cases
Concordia bus - need 4 conditions
EVN - cant be linked to general aspects of bidder, must be contract specific
Beentjes
employing LT unemployed ok as contract point
Dutch Coffee
cant use labels requirements without “or equivalemt”
Max Havelaar label and EKO
Regiopost (following Ruffert)
gotta pay min wage. Not a social issue, but a follow the law issue
Autorita Garante
FA must specify who can use, and max purchase allowed
Woods Bldg Srvices v
Milton Keynes Council
cant carry notrs from one stage to another
asbestos removal
Faraday case
first dec of ineffect. case. Unsucessfully used VEAT Notice (because veal is just vol. ex-ante transparecy…need the word notice after).
Acoset
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’
Mannesmann
a public interest mandate makes you a CA (by personal jurisdiction)
the man is a man if public interested
Cambridge case
if get more than 50% funding, suddenly become CA for that year
