{"id":846,"date":"2021-06-19T21:48:03","date_gmt":"2021-06-19T21:48:03","guid":{"rendered":"http:\/\/legalblog.ie\/?p=846"},"modified":"2021-10-25T18:54:48","modified_gmt":"2021-10-25T18:54:48","slug":"private-enforcement","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/private-enforcement\/","title":{"rendered":"Private Enforcement"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/private-enforcement\/#Effective_National_Remedies\" title=\"Effective National Remedies\">Effective National Remedies<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/private-enforcement\/#Persons_Challenging\" title=\"Persons Challenging\">Persons Challenging<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/private-enforcement\/#Remedies_Directive\" title=\"Remedies Directive\">Remedies Directive<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/private-enforcement\/#Interim_Measures\" title=\"Interim Measures\">Interim Measures<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/private-enforcement\/#Invalidating_Awards\" title=\"Invalidating Awards\">Invalidating Awards<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/private-enforcement\/#Compensation\" title=\"Compensation\">Compensation<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Effective_National_Remedies\"><\/span>Effective National Remedies<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The European Court of Justice has emphasised that national Courts&#8217; procedures must give effective remedies.\u00a0 They may impose time limits including time limits in which the challenge in relation to the process, the time limits must be reasonable.<\/p>\n<p>States must allow for the grant of damages to aggrieved tenderers. Where it is not possible to re-open the contract, damages will be the appropriate remedy.\u00a0 These may relate to costs in participation or loss of profit if the claimant would have been awarded the contract but for the infringement.<\/p>\n<p>There is a relatively high level of proof required to show that a person would have been awarded the contract. Where he shows that he would have had a real chance of winning the contract, he should at least be awarded the costs of the tender.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Persons_Challenging\"><\/span>Persons Challenging<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Persons will have a sufficient interest in challenging a decision such as where they have an interest in obtaining the contract, or otherwise who suffers harm or potential financial loss by the infringement.<\/p>\n<p>Participation in the process will generally be required.\u00a0 If the entity has not participated, it would be difficult to show it has been harmed or is being harmed by the decision.\u00a0 There may be cases however where the awarding authorities have been discriminatory in their specifications and requirements, so that a person may suffer harm, notwithstanding that he, therefore, chose not to participate in the process.<\/p>\n<p>A person may be denied a remedy where he does not take action at an initial stage when he could have taken action but later seeks to set aside the contract at the award stage.\u00a0 If there has been discrimination or other infringement, at a stage in the procedure, but the tenderer is not eliminated until a later stage, the aggrieved tenderer, should generally retain the right to challenge the decision, beyond the point of exclusion as it is only at that point that his interest has been harmed.\u00a0 However, a tenderer may not be precluded from challenging illegality affecting his interest by the expedient of being kept in the process.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Remedies_Directive\"><\/span>Remedies Directive<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Remedies Directive requires States to introduce effective remedies and means of enforcement of \u00a0Procurement Rules for service providers and suppliers who have been damaged by breach of the Rules.\u00a0 There must be an effective review of the decisions of awarding authorities.\u00a0 States must ensure that decisions taken by awarding authorities may be reviewed rapidly and effectively and may be enforced against where they have infringed procurement law.<\/p>\n<p>There are separate Directives in respect of public sector remedies and utility remedies, with provisions in broadly similar terms. States are required to ensure an effective and rapid review of decisions taken by awarding authorities under procurement legislation.\u00a0 The method should be similar to national legal methods, without discrimination.<\/p>\n<p>Individuals may take legal action against awarding authorities, State government and public bodies on the basis of breach of the Public Procurement Rules.\u00a0Persons who have an interest in a particular contract or award, or who are at risk of being damaged or harmed by the alleged infringement must be entitled to invoke the remedies.<\/p>\n<p>The Remedies Directive, in effect, allows for decentralised enforcement of the legislation.\u00a0 Remedies are in accordance with the relevant national legislation. The courts must balance the consequences of granting suspensory measures such as an injunction.\u00a0 The principle of proportionality applies.\u00a0 The adverse consequences must not exceed the benefits.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Interim_Measures\"><\/span>Interim Measures<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Interim measures must be provided, with view to rectifying alleged infringements causing further damage.\u00a0 The procedure must be suspended pending determination of the matter. This is by injunction in a common law jurisdiction.<\/p>\n<p>Suspension need not be automatic.\u00a0 Courts may take account of harm likely to occur to others as well as the public interest.\u00a0 The advantages of grant of measures must not exceed their benefits.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Invalidating_Awards\"><\/span>Invalidating Awards<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The courts must have the power to set aside the award or decision by the authority. National courts may decide whether they set the contract aside or simply declare illegality and award damages.\u00a0 Most states allow for the contract to be set aside.\u00a0 This is potentially very disruptive, particularly where steps have been taken on foot of the award.<\/p>\n<p>The national court may determine whether it should set aside the contract or declare it illegal and grant compensation.\u00a0The rendering void of the contract will depend on the nature of the breach and circumstances.\u00a0 It may be possible for the contract to be severed of the unlawful elements.\u00a0 Some breaches of their nature may not affect the validity of the contract at all.<\/p>\n<p>A civil enforcement application is made by way of judicial review to the court.\u00a0 Public law remedies of prohibition and mandamus are available, or unlawful state action.<\/p>\n<p>In some cases, the nullity or invalidity may relate to part of the contract only.\u00a0 In these cases, the balance of the contract may remain viable and may remain.<\/p>\n<p>Less serious procedural flaws are unlikely to lead to the annulment of the contract.\u00a0 However, fundamental and more serious breaches such as in relation to qualification and the application of award criteria are unlikely to be severed and the decision is likely to be invalidated.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Compensation\"><\/span>Compensation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Directive requires an award by way of compensation to persons who have been wronged.\u00a0 Cases are typically be taken by the disappointed tenderers.<\/p>\n<p>The successful tenderer may be entitled to compensation if he suffers losses by reason of the contract being ultimately set aside.\u00a0 If the illegality is known to the tenderer or is result of his actions or inactions, then compensation is unlikely and the contract is more likely to be set aside.<\/p>\n<p>The level of damages will depend on whether the applicant can prove that its would have been awarded or likely to have been awarded the contract but for the breach.\u00a0 In this case, there may be damages for loss of profit. Where the applicant has not been invited to tender or would be unlikely to have been given the award, losses other than expenses may be more difficult to prove other than those in respect of the expenses of the tender.<\/p>\n<p>The applicant may seek to prove that his application was the most economically advantageous.\u00a0 In this case, if successful, he is likely to have been awarded the tender and be in a position to show loss.\u00a0 If he has been unlawfully excluded from the process, his loss may be substantial.<\/p>\n<p><strong>Utilities<\/strong><\/p>\n<p>The utilities sector remedies.\u00a0 Remedies Directive in respect of the utility sector allows for a conciliation procedure through the European Commission.\u00a0 The Commission requests the utility to state whether it is willing to participate in the procedure.\u00a0 If consent is given, a conciliator is proposed by the Commission from a list of independent persons.\u00a0 Conciliators seek to find an agreement.\u00a0 Either party may withdraw from the procedure at any time.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-846\" data-postid=\"846\" class=\"themify_builder_content themify_builder_content-846 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Effective National Remedies The European Court of Justice has emphasised that national Courts&#8217; procedures must give effective remedies.\u00a0 They may impose time limits including time limits in which the challenge in relation to the process, the time limits must be reasonable. States must allow for the grant of damages to aggrieved tenderers. Where it is [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[25],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/846"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=846"}],"version-history":[{"count":1,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/846\/revisions"}],"predecessor-version":[{"id":847,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/846\/revisions\/847"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=846"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=846"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=846"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}