European Union Public Procurement Remedies Regimes: The Nordic Experience

European Union Public Procurement Remedies Regimes: The Nordic Experience

Kai Krüger (Emeritus University of Bergen, Norway)
DOI: 10.4018/978-1-4666-2665-2.ch008
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Abstract

The chapter explores the Nordic statutory EU-based remedy regimes. Due to the European Economic Area (EEA) agreement, the EU commitments do not vary between EU member states, Denmark, Finland, and Sweden and (non-members) Norway and Iceland. The legislation on procurement remedies is assumed to be EU/EEA compliant. There are however material differences in the set up for handling disputes and complaints—also subsequent to the 2010-2012 Nordic adaptation of EU Directive 2007/66/EC on enhanced procurement remedies. The pending issue is whether the EU “sufficiently serious breach” principle on treaty infringements applies on liability for procurement flaws. Loss of contract damage has been awarded in all Nordic countries, whereas cases on negative interest (costs in preparing futile tender bids) seem more favorable to plaintiffs. Per mid-2012, there are no Nordic rulings on the effect of the recent somewhat ambiguous EU Court of Justice Strabag and Spijkers 2010 rulings.
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Introduction

The Swedish and Finnish dual court pillar systems distinguish between public administrative courts authorized to issue injunctions, impose penalties, and declare contracts ineffective as opposed to civil courts, which handle claims for damages and regular contract disputes between contracting authorities and private suppliers. The Danish public procurement remedies are placed with the semi-judicial fully authorized Danish Complaint Board as an optional alternative to court litigation. Adversely, competences on injunctions, penalties, ineffective contracts, and damages are in Norway handled by general civil courts, whereas the KOFA Complaint Board is only resorted to for advisory non-binding opinions. Questions on damage formal-procurement have been raised in all Nordic Supreme Courts, leaving a somewhat scattered picture both on the basis for liability.

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