PUBLIC PROCUREMENT - Lexnet

Note on The Danish System http://simap.eu.int/DA/pub/src/d005.html
border cases (point 5) Finally, the functions of the Complaints Board will be compared with
those of the Danish Competition Authority (point 6).
2. The Complaints Board
The Complaints Board was set up by law in 1991 to comply with the first Remedies
Directive from 1989. This legislation – and thereby the activities of the Board – took effect
from 1 January 1992, but has later been amended to conform with the requirements of the
second Remedies Directive relating to the utilities sectors adopted in 1992. Detailed rules
regarding the functioning of the Board are laid down in a ministerial order issued by the
Danish Minister for Business and Industry.
(a) Organisation and Competence
The Complaints Board is an independent administrative board for the hearing of complaints
concerning violation of the EU rules for the award of public contracts. The competence of
the Board relates both to the public procurement directives and the relevant rules of the
Treaty on non-discrimination and the free movement of goods and services.
In one particular area, the Board is not competent to treat complaints. This is because
Denmark has made use of the special "dissuasive payments" sanction provided for in article
2, paragraph 1, c) of directive 92/13/EEC in relation to a certain category of contracting
entities, i.e. those mentioned in article 2, paragraph 2, b) i) of the Utilities Directive
(93/38/EEC) who are exploring for or extracting oil, gas, coal or other solid fuel. This
"dissuasive payments" remedy vis-à-vis the said category of contracting entities replaces the
ordinary sanctions, for example the annulment of unlawful decisions or imposition of
interim measures. Complaints about the behaviour of contracting entities in this particular
category must be brought before the so-called Maritime and Commercial Court (in Danish:
Sø- og Handelsretten). The reason for this is that the payment sanction according to the
Danish legislation has the character of a fine, i.e. a santion under criminal law which can
only be imposed by a "real " court. Until now, there have been no complaints against
contracting entities in this category.
The Complaints Board is composed by a chairman and two vice-chairmen, all of them
professional judges, and a number of expert members appointed by the Danish Minister for
Business and Industry from among persons with knowledge of building and engineering,
public procurement, transport and allied commercial activities.
(b) Claimants
The Complaints Board only acts upon the submission of a complaint, i.e. a concrete case.
The Board is thus not empowered to give legal opinions on an abstract basis. A complaint
may be submitted by any party with a legal interest in complaining, which means by anyone
who has an individual and significant interest. Thus, all potential suppliers, by definition, are
entitled to file complaints. Furthermore, a number of business organisations and public
authorities have been granted a right to complain by the Minister for Business and Industry.
The 48 authorities and organisations currently entitled to submit complaints are listed in a
schedule to the above ministerial order.
Furthermore, the Board is entitled to allow a third party to intervene in its proceedings when
the case is considered to be of great importance to that third party. This applies even in cases
where that party does not itself fulfill the conditions for bringing action.
(c) Procedures (including costs)
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