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Experiences with
Solution of Cross-Border
Problems in Public
Procurement Procedures

Experiences with Solution of
Cross-Border Problems in Public
Procurement Procedures
1

Experiences with Solution of Cross-Border
Problems in Public Procurement Procedures
Printed by Schultz Grafisk, Denmark
The Danish Competition Authority, Copenhagen
www.ks.dk
August 2002
ISBN 87-7029-276-0 Print
ISBN 87-7029-279-5 Online
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Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. The network. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. Introduction of cross-border problem-solving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. Pre-contract problem solving. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
IV. Experiences gained from practical cross-border cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Characteristics of the method for cross-border problem-solving . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I. Cross-border problem solving is a service for the supplies sectors. . . . . . . . . . . . . . . . . . . . . . . . . 9
I.1. The objective is equal competition conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I.2.
The interest of the company is in focus
– not control of the procurement procedure itself . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I.3. The company's assessments are decisive, i.a. for the purpose of anonymity . . . . . . . . . . 10
I.4. Complaints are not always justified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I.5. Information for the companies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
II.
Cross-border problem-solving is based on informal, efficient co-operation
between competent, national authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
II.1. No legal powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
II.2. Problems are to be solved in a low-conflictual atmosphere . . . . . . . . . . . . . . . . . . . . . . . . 12
II.3. Guidelines for the network co-operation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
II.4. Reciprocity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
II.5. Common language. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
III. Cross-border problem-solving is supplementary to the traditional review procedures . . . . . . . . 13
III.1. Not all problems may be solved by this method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
III.2. The method is most useful in concrete cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
III.3. The method is most effective in connection with pre-contract problems . . . . . . . . . . . . 15
III.4. The method is also useful in connection with matters open to question . . . . . . . . . . . . . 15
IV. The Commission's role in cross-border problem-solving co-operation . . . . . . . . . . . . . . . . . . . . 16
V. European/EU institutions are obliged to comply with the public procurement rules . . . . . . . . . 16
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3. Concluding remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ANNEX A:
Concrete Cross-Border Cases - 26 Examples. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ANNEX B:
Guidelines for Co-operation on Solution of Cross-Border Problems
in Relation to Access to Procurement Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ANNEX C:
Confidentiality in connection with Cross-Border Problem-Solving . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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1. Introduction
Opening up national public procurement markets
to competition from other Member States with a
view to offering competitive suppliers significant
opportunities is the overall objective of the network
co-operation between the national public
procurement authorities described in this report.
As part of the Pilot Project on Public Procurement
1 the network co-operation was started in
order to provide and test, in practice, an efficient
method for solving problems in a swift and flexible
manner in concrete cross-border public procurement
cases.
The problems that can be handled by the method
described are obstacles to gaining access to public
contracts due to alleged violations of the public
procurement rules committed by contracting
authorities.
I. The network
The Pilot Project network consists of the following
authorities:
Ministerie van Economische Zaken, The Netherlands
Bundesministerium für Wirtschaft, Germany
Office of Government Commerce, United Kingdom
Ministerio de Hacienda, Secretaria de la Junta
Consultiva de Contratación Administrativa, Spain
Presidenza del consiglio dei ministri, Italy
Konkurrencestyrelsen, Denmark
Nærings- og handelsdepartementet, Norway
Staatssekretariat für Wirtschaft, Switzerland
Commission des Soumissions, Ministère des
Travaux Publics, Luxembourg
Liechtensteinische Landesverwaltung,
Hochbauamt, Stabsstelle "Öffentliches
Beschaffungswesen", Liechtenstein
Bundeskanzleramt, Verfassungsdienst dept. V/8,
Austria
Department of Finance, Government Contracts,
Ireland
Handels- och Industriministeriet, Finland
Nämnden för offentlig upphandling, Sweden
Ministério dos Negócios Estrangeiros,
Direcção-Geral dos Assuntos Comunitários,
Portugal
Each of these authorities function as a contact
point for network co-operation with the aim of
solving problems in concrete cases as described in
the report. The address data of the contact points
1. Cf. Final Report on the Implementation of the Pilot Project on Public Procurement
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are available on the project website: www.procurementsupport.com.
The EU Commission is associated with the network
co-operation as explained in chapter 2, section
IV.
II. Introduction of cross-border problemsolving
A concrete cross-border public procurement case
would, typically, be a situation where a supplier
faces a problem with a procurement procedure in
another Member State, and addresses himself to
the public procurement contact point in his own
country.
When the contact point of the supplier's country
receives the complaint from the supplier, it starts a
preliminary investigation in order to make sure
that the problem in question concerns a violation
of the public procurement rules that can be
ascribed to the contracting authority concerned.
Having examined the problem as far as possible as
it is presented by the supplier, the contact point of
the supplier's country approaches the contact
point of the contracting authority's country
requesting co-operation and initiation of a problem-solving
process.
The basic and essential element of the problemsolving
process is that the national (contact point)
authority of the contracting authority's country
should exercise persuasive influence on the contracting
authority/entity in question in order to
draw its attention to the problem and induce it to
adjust its procurement behaviour in a more competitive
way, if appropriate.
A precondition for success this way with a problem-solving
facility is first of all mutual trust
between the participating national authorities. The
Pilot Project on Public Procurement constitutes an
example of such network co-operation.
III. Pre-contract problem solving
The idea of pre-contract problem solving 1 is of
essential importance in cross-border cases. The
term "pre-contract problem-solving" refers to
action taken in the course of a public contract
award procedure with a view to ensuring equal and
fair competition regarding the contract in question,
in due time. In other words, it is action taken
before the contract has been awarded and possibly
signed, in contrast to the notion of "post-contract",
which relates to events after the award/signature of
the contract when any reactions are normally very
limited.
Problem solving by exercising persuasive influence
on the contracting authority/entity before the procurement
procedure is terminated by the award of
the contract may lead to the result that the complaining
supplier will meet fair competition during
the procurement procedure in progress and get
1. Cf. Report concerning the Study on Pre-Contract Problem-Solving Systems
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access to the procurement procedure in question
on equal terms.
This method should be seen in contrast to action
taken "post-contract" when the award of the contract
has taken place, and it is no longer possible to
change the competition conditions that form the
basis for the selection of candidates and/or award
of the contract.
Chapter 3 contains the concluding remarks.
The full information concerning the Pilot Project
and the cross-border problem-solving method is
available on the project website: www.procurementsupport.com.
IV. Experiences gained from practical crossborder
cases
In Annex A to the report 26 practical cases considered
within the network co-operation of the Pilot
Project on Public Procurement are described. This
illustrates the effectiveness and flexibility of the
problem-solving method. It also reveals the limits
of the method and thereby demonstrates that the
network co-operation between national authorities
is supplementary to the formal review systems
1 .
In the following chapter 2 the experiences gained
from cross-border problem solving in practice
according to the method described is reported.
The most important characteristics of the method
are presented, and for each characteristic element
there is a reference to one or more concrete cases
listed in Annex A. Yet, many of the examples are
illustrating more than one of the highlighted characteristics
- due to their reflection of concrete,
practical situations.
1. Understood as the formal systems pursuant to the Remedies Directives
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2. Characteristics of the method for cross-border
problem-solving
I. Cross-border problem solving is a service
for the supplies sectors
I.1. The objective is equal competition conditions
The method described has been developed as a
service to assist supplier companies in the EU/EEA
to solve problems that the companies may face
when they participate in a public procurement
procedure abroad. The problems that may be considered
in this connection are barriers to participating
on equal terms in competition for public
contracts as a result of violations of the public procurement
rules by contracting authorities. The
objective is to open the national public procurement
markets to competition from other Member
States.
Companies that wish to make use of this service
and request assistance in a specific case must,
therefore, be aware that the result the enterprise
may expect to achieve will not exceed the possibility
of participating on equal terms in the public
procurement procedure in question. Whether the
company stands a chance of winning the contract
subsequently, will depend on whether its tender
meets the procurement conditions and is sufficiently
competitive – as is the case in any public
procurement procedure.
It is important to underline this in the information
provided to the business community and enterprises
that make use of this service.
An illustration of this is given i.a. by example 1 and
2 in Annex A.
I.2. The interest of the company is in focus – not
control of the procurement procedure itself
On the other hand, the network co-operation
described is not aimed at control of whether every
detail of the public procurement procedure in
question is legal and in conformity with the public
procurement rules as such. When a company
addresses the contact point in its own country, the
problem solving will primarily be targeted at giving
this company an equal competitive position
with regard to the contract in question.
It is in no way the intention of the contact point
authority in the country of the complaining company
to monitor compliance with the public procurement
rules as such in the contracting
authority's country. This task rests with the competent
authority of the contracting authority's
country and the Commission. It is exclusively the
complaining enterprise’s interest that is in focus in
connection with cross-border problem-solving.
Equal competition terms for the enterprise that has
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complained may, naturally, often mean more equal
competition seen from the point of view of more
of the tenderers.
It is an altogether different matter if the competent
authority of the contracting authority/entity's
country, by having its attention drawn to the procurement
procedure, happens to discover other
irregularities in connection with the procurement
procedure than the one or those that led to the
enterprise’s complaint. Response to this falls outside
the scope of the cross-border co-operation.
An illustration of this is given i.a. by example 3 in
Annex A.
I.3. The company's assessments are decisive, i.a.
for the purpose of anonymity
As problem solving is targeted at the needs of the
company, it is also the company's assessments that
are decisive for the steps to be taken in the course
of the problem-solving exercise. The company has
to safeguard its business interests and the investigation
of the matter must, therefore, be conducted
in close co-operation with the company.
Changes may occur in the course of the procurement
procedure or in connection with it which
mean that the company does not wish to proceed
with a case that has already been started. These
may be changes that will benefit the company in
the specific situation. It may also be that a company
for fear of becoming blacklisted decides to
withdraw a complaint that has led to the initiation
of problem-solving co-operation. The authorities
involved must respect this.
The same applies to the approach of a company
that wishes to remain anonymous. Companies are,
in particular, very often concerned about getting
blacklisted if the name of the company should
become known in connection with a complaint.
Experience gained from the Pilot Project shows
that it is, actually, possible to protect the anonymity
of a complainant, at any rate to a very large
extent. A company that approaches a contact point
authority will often make it a precondition that its
anonymity should be protected. As it is difficult to
guarantee 100 per cent anonymity, some companies
withdraw their complaints for that reason.
An illustration of this is given i.a. by example 4, 5,
and 6 in Annex A.
I.4. Complaints are not always justified
Enterprises must also be aware that a complaint
may be unfounded under the public procurement
rules. Cross-border problem solving in the sense
described here applies exclusively to problems in
connection with violations of the public procurement
rules.
Even if an enterprise may feel unfairly treated in
connection with a public procurement procedure
in which it participates, it is not certain that the
public procurement rules have been violated. It
may be that the competition rules have been violated
or there may be other reasons why the enterprise
feels badly treated.
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In order to counter situations like this, it will prove
expedient for the enterprise to receive thorough
guidance on the matter provided by the authority
the enterprise has contacted, that is its contact
point authority.
Finally, there is a relatively simple explanation: that
the competition conditions in the sector in question
differ from the enterprise’s expectations. In a
situation like this, the enterprise must take steps
with a view to facing the actual competition conditions.
An illustration of this is given i.a. by example 7 and
8 in Annex A.
I.5. Information for the companies
For companies to benefit from the above service,
they must be aware of its existence. To provide
information on the service is, therefore, a task in
itself. Experience gained from the Pilot Project has
clearly demonstrated that a targeted information
effort vis-à-vis European enterprises is necessary,
as this service is a matter of an altogether new
aspect in the area of tendering for public contracts.
The outcome of implementing information efforts
and making enterprises interested in filing complaints
will be that the above cross-border problem-solving
co-operation may cast light on any
hidden violations of the procurement rules and
have them rectified. This will contribute to the creation
of a genuinely open European public procurement
market.
Similarly, all the numerous European contracting
authorities/entities must learn of the network cooperation
on assistance to enterprises in specific
procurement cases. It will, undoubtedly, have a
preventive effect on the procurement-related
behaviour of contracting authorities/entities.
Within the Pilot Project a website is constructed:
www.procurementsupport.com . Here, the enterprises
and other interested parties can find the full
information on how to bring a complaint in case of
an alleged violation of the public procurement
rules in cross-border tendering.
A general EU problem solving facility, the SOLVIT
network, is under construction by the Commission.
From it, the project website will be accessible.
An illustration of the importance of information is
given i.a. by example 9 in Annex A.
II.
Cross-border problem-solving is based on
informal, efficient co-operation between
competent, national authorities
II.1. No legal powers
The fundamental idea of the method described is,
that the problem-solving exclusively is performed
in the way that the competent national procurement
authority uses its influence vis-à-vis the contracting
authority/entity about which a company
has complained. One of the objectives of using
persuasive power altogether informally to ensure
equal and fair competition with regard to public
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contracts is to prevent formal complaints from
being lodged with national boards of complaint, or
courts of law, or in the last resort with the EU
Commission, as these cases are very cumbersome
and costly.
The competent authority has, normally, no legal
powers with regard to the contracting authority/
entity in question. It is exclusively the weight the
competent authority may lend to its assessment of
a concrete case, which on many occasions will
prove sufficient for the contracting authority to listen
and adjust its procurement procedure with a
view to complying with the procurement rules.
This alternative form of problem-solving is much
speedier and less expensive than cases brought
before the courts or the Commission.
Furthermore, there is the advantage that it opens
up for pre-contract problem-solving to a large
extent. In that way it contributes more effectively
to the creation of a genuinely open European public
procurement market than does conflict solving
before the formal instances of complaint. Pre-contract
problem solving is described in detail in section
III.3.
An illustration of this is given i.a. by example 10,
11 and 12 in Annex A.
II.2. Problems are to be solved in a low-conflictual
atmosphere
Another advantage of this alternative method is
that any problems arising in connection with a
public procurement procedure may be solved in a
rather quiet manner and, at least most often, without
giving rise to the conflict-loaded atmosphere
that usually characterises a case brought before the
courts of law or a case of breach of the Treaty.
The explanation is that the national procurement
authority is, in general, relatively close to the contracting
authority and, at least in some countries,
has an almost colleague-like relationship with the
contracting authority.
Consequently, this problem-solving method contributes
to maintaining good supplier/customer
relations in the field of public procurement and,
consequently, to reducing the problem of enterprises’
fear of being blacklisted, which may well
prove relevant if the contracting authority finds
out who filed the complaint.
Several cases listed in Annex A illustrate the effectiveness
of the method in this sense. Example 13
i.a. is pointed to.
II.3. Guidelines for the network co-operation
In cross-border cases at least two competent
authorities are involved. The complaint is received
by one authority (the competent authority in the
country of the complainant), which will request
the other authority (the competent authority in
the country of the contracting authority/entity) to
investigate the matter and see to it that any irregularities
are rectified with a view to securing equal
competition conditions.
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During the Pilot Project work a number of measures
have been drawn up for the co-operation
between the authorities. They take the form of a set
of guidelines, please see Annex B. The principal
substance of this is that the necessary resources
must be allocated to investigate matters, to hold
consultations with the contracting authority and
to arrive at a solution in time. Speedy processing of
a case may prove altogether decisive for whether a
company achieves a satisfactory result. Naturally,
this is first and foremost the case in pre-contract
matters.
The guidelines drawn up may prove a precedent
for any future permanent network co-operation
between the European competent authorities on
cross-border problem-solving.
Several cases listed in Annex A illustrate the effectiveness
of the method in this sense. Example 14
i.a. is pointed to.
II.4. Reciprocity
A national competent authority that enters into
the kind of network co-operation described in the
above must be aware that it implies full reciprocity
in the co-operation. It means that the authority
cannot exclusively assist enterprises in its own
country concerning procurement cases in another
country. A national competent authority must also
consider requests from another country’s authority
to look into any violations committed by contracting
authorities/entities in the country of the
national competent authority concerned. For the
network co-operation to function satisfactorily,
every competent national authority must, therefore,
take a credible position on procurement
issues vis-à-vis contracting authorities/entities in
its own country.
An illustration of this is given i.a. by example 15 in
Annex A.
II.5. Common language
A developed European network co-operation on
cross-border problem-solving is based on the
assumption that at least the two national competent
authorities involved are able to use a common
language. The work of the Pilot Project was primarily
conducted in English, but also in languages
which suited the countries involved, for example
Norwegian-Danish in matters of interest to Norway
and Denmark. Out of consideration for the
information value of solved cross-border cases, it
will prove expedient to use English to a large
extent, and give a subsequent anonymised summary
of the case in English for the purpose of the
network efforts.
III. Cross-border problem-solving is supplementary
to the traditional review procedures
III.1. Not all problems may be solved by this
method
The fact that the cross-border problem-solving
method described is supplementary to the traditional
review procedures is obvious and is illustrated
in practice in some cases. It may, for
example, be necessary in certain situations to
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obtain a legally valid decision on a question instead
of a, just as weighty, indication from the national
competent authority, especially if there is little
time up to a deadline. Especially in situations
where there is little time, the problem-solving system
in a low-conflictual atmosphere, which is
characteristic of the method described, may prove
either particularly expedient, or it may turn out to
be impossible to make it work. In some countries
the law provides remedies for situations of this
kind.
It may also be that the national competent authority
is altogether unable to solve the problem that
has led to the complaint. If, for instance, a country’s
legislation on certain points presents a risk of
violation of the procurement rules, it may prove
necessary to draw the Commission’s attention to
the matter with a view to motivating the government
of the country in question to consider the
issue.
Therefore, the cross-border network co-operation
described in the above is based on the Commission
being associated with the problem-solving work.
This aspect is considered in detail in chapter IV.
An illustration of this is given i.a. by example 16
and 17 in Annex A.
III.2. The method is most useful in concrete cases
Cross-border problems arise most often in concrete
cases, i.e. when a company encounters real
barriers to its participation in a public procurement
procedure in another country than that of
the company. As described in the above, the
method is for the company to approach the contact
point in its own country. The problem-solving
work will, subsequently, be initiated within the
framework of the established network co-operation.
Experience gained from the Pilot Project shows,
however, that national business organisations may
sometimes have observed a general tendency that,
for example, a provision laid down in the procurement
rules is interpreted by one country in a way
that runs counter to at least the views of certain
other countries.
Matters like this have in some cases been brought
before the network co-operation of the Pilot
Project for consideration. It is very important with
a view to setting up a single market for public contracts
that differences of interpretation of the procurement
rules should be highlighted in this way.
What the network can then do is, therefore, to shed
light on the problem and subsequently leave it
altogether to individual national competent
authorities to make any changes with regard to the
interpretation they have applied so far.
In other contexts it may be more expedient to draw
the attention of the Commission to differences of
interpretation and either get the Commission’s
opinion on this or leave it to the Commission to
pursue the matter in relation to the country in
question.
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An illustration of this is given i.a. by example 18
and 19 in Annex A.
III.3. The method is most effective in connection
with pre-contract problems
The idea of pre-contract problem-solving was presented
in the Introduction, section III. The term
refers to action taken before the contract has been
awarded and signed, in contrast to the term postcontract,
which relates to events after the award/
signature of the contract, when reactions to any
violations of the procurement rules are normally
very limited.
This is a much more effective and targeted way of
dealing with complaints about violation of the
procurement rules than the traditional complaints
channels where, as a rule, the only sanction is the
possibility of compensation. It is, in addition,
much more satisfactory for the business community
because it aims to right a non-existing or
unfair competition situation that is relevant and
important for the company that faces the problem
here and now.
In the course of the Pilot Project work, cross-border
problem-solving has focused on the solution of
pre-contract problems. The network co-operation
established was launched in order to test this
method of problem-solving. Experience gained
from it has been very encouraging. For, it is a
strong point of the international network co-operation
that it is able to deal with pre-contract problems
in a speedy, flexible and effective manner.
Most specific cases considered under the Pilot
Project have been pre-contract cases (around two
third).
This does not imply, however, that problems arising
after the contract has been concluded cannot
be solved within the framework of the network cooperation
described. A number of cases of this
nature have been considered in the course of the
Pilot Project work. Often it will prove sufficient for
the complaining company to know that matters
will be rectified with regard to the future.
There is a special aspect when an enterprise complains
that a contract has not been subject to the
EU procedure at all. Also in this respect, experience
has been gained from the work of the Pilot
Project, cf. i.a. the case set out in Annex A, example
17.
An illustration of the effectiveness of the pre-contract
problem-solving method is to be found in
several cases in Annex A, i.a. in examples 1, 3, 6,
10, 14 and 24. Example 20 illustrates the method
applied to a post-contract problem.
III.4. The method is also useful in connection with
matters open to question
The great significance of the network co-operation
set up in the course of the Pilot Project is that it has
led to communication between the national competent
procurement authorities. It has opened up
for flexible and easily accessible ways to discuss
questions of interpretation and application of the
procurement rules in connection with concrete
procurement cases, also when there is no question
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of an actual complaint, but rather a matter of
uncertainty. Interpretation and application of the
procurement rules in concrete cases is a separate
area within the Pilot Project, and experience
gained from it has been very positive 1 .
An illustration of this is given i.a. by example 21 in
Annex A.
IV. The Commission's role in cross-border
problem-solving co-operation
The method implies that the network co-operation
between the national competent authorities should
be supported by the Commission. In order for the
problem-solving method described to be successful,
it is necessary that the Commission should be
associated with the network co-operation. It
should be possible to draw the attention of the
Commission to problems which cannot be solved
by attempts to persuade the contracting authority
in question to change its procurement behaviour,
cf. Treaty Article 211 (155).
Naturally, it cannot be taken for granted that the
Commission in all cases will initiate investigations
or open procedures under Treaty Article 226 (169)
against the government of the country in question.
However, the very fact that the Commission supports
the network co-operation and is prepared, if necessary,
to be approached in connection with alleged
violations of the procurement rules will have a considerable
preventive effect and lend the necessary
prestige and authority to the network co-operation.
An illustration of this is given i.a. by example 22,
23 and 24 in Annex A.
V. European/EU institutions are obliged to
comply with the public procurement rules
The EU public procurement rules given as directives
to the Member States are not automatically
obligatory for the EU institutions. However,
according to the EU's Financial Regulation the EU
institutions shall apply the rules at their conclusion
of procurement contracts. This is reaffirmed in the
Commission's Communication on Public Procurement
in the European Union, 11.03.1998.
The European Parliament has no similar guidelines
for its procurement matters. The European Parliament,
yet, basically follows the same procurement
instructions as those, which the Commission services
are obliged to follow.
This appears from a letter from the European Parliament
sent in connection with a "cross-border"
case (example 26 in Annex A) brought for the
European Parliament under the Pilot Project.
As an illustration, please cf. examples 25 and 26 in
Annex A.
1. Final Report on the Implementation of the Pilot Project, chapter IV: Applications and Interpretations of the Regulatory
Framework
16

3. Concluding remarks
The public procurement cross-border problemsolving
method described relies on a network cooperation
between the national competent procurement
authorities and support of this by the
Commission, the overall objective of this being
opening up national public procurement markets
to competition from other Member States with a
view to offering competitive suppliers significant
opportunities.
The key ingredients of the method are:
• Mutual trust between the participating national
authorities.
• Problem-solving based on informal, efficient
network co-operation between the national
authorities in the field of public procurement.
• The participating authorities have no legal
power with regard to the contracting authority/
entity in question.
• Exclusively the weight the national competent
authority lend to the assessment of the case constitutes
the persuasive power and influence vis-àvis
the contracting authority/entity sufficient for
it to adjust the procurement procedure, if appropriate,
in compliance with the procurement
rules.
• The method aims at pre-contract problem-solving,
instead of the traditional post-contract
review of procurement procedures, thereby safeguarding
real competition on the public contract
market.
• Procurement problems may be solved in a simple,
quiet and low-cost manner without giving
rise to the conflict-loaded atmosphere that usually
characterises a case brought before the
courts or a case of breach of the Treaty.
• The method is supplementary to the traditional
review procedures.
• The network co-operation between the national
competent procurement authorities based on
mutual trust opens up for flexible and easily
accessible ways to discuss questions of interpretation
and application of the procurement rules
in connection with concrete procurement cases.
Thereby the Member States can contribute to the
analytical work by coming forward with their
experiences based on concrete cases.
The Pilot Project has demonstrated the efficiency
of the network co-operation with the aim of problem-solving
in the public procurement area. On
the website: www.procurementsupport.com, the
problem-solving method in practice is facilitated.
17

ANNEX A:
Concrete Cross-Border Cases - 26 Examples
The Annex brings summaries of a number of concrete
cross-border cases illustrating the characteristics
of the network co-operation on problemsolving
described in the report: Experiences with
Solution of Cross-Border Problems in Public Procurement
Procedures.
The examples are grouped under the headings of
the report. Yet, many of the examples are illustrating
more than one of the emphasised characteristics
– due to their reflection of concrete, practical
situations.
List of examples:
Re: I.1. The objective is equal competition
conditions
Example 1:
Criterion for the award of contract of 2 years'
representation in the state in which the contract
should be executed
Example 2:
Sealing of containers for foodstuffs to be shipped
in the context of EU Food Aid Policy
Re: I.2. The interest of the company is in focus -
not control of the procurement procedure
itself
Example 3:
Requirement that all products should be delivered
from the same factory during the entire contract
period
Re: I.3.
The company's assessments are decisive,
i.a. for the purpose of anonymity
Example 4:
Contract negotiations started without a prior call
for tenders
Example 5:
Long term framework contracts concluded by German
contracting authorities as hindrances for
competition
Example 6:
Restricted accelerated procedure applied
Re: I.4.
Complaints are not always justified
Example 7:
The purchaser was not a contracting authority
under the procurement rules
19

Example 8:
Competition conditions cause that the tenderers
must take their measures
Re: I.5.
Information for the companies
Example 9:
A very quick solution of a procurement problem
Re: II.1. No legal powers
Example 10:
Contracting authority refused to accept delivery of
tender documents
Example 11:
Selection criteria not made available to interested
companies
Example 12:
No EU-procedure applied - the annual value of the
supply was below the threshold, but the total value
of the contract exceeded the threshold
Re: II.2. Problems are to be solved in a low-conflictual
atmosphere
Example 13:
Short time limit for preparing the bids under the
Utilities Directive
Re: II.3. Guidelines for the network co-operation
Example 14:
A problem of competitive position treated between
UK and Denmark
Re: II.4. Reciprocity
Example 15:
The complainant did not receive the tender documents
in time
Re: III.1.Not all problems may be solved by this
method
Example 16:
Solution of a procurement problem by bringing
the case for the court
Example 17:
Solution of a procurement problem by action from
the EU Commission
Re: III.2.The method is most useful in concrete
cases
Example 18:
National legislative requirements for enrolment in
a national professional register
Example 19:
National legislation prescribing - apparently - that,
as a rule, the negotiated procedure should be used
for contracts concerning certain services
Re: III.3.The method is most effective in connection
with pre-contract problems
Example 20:
Complaint from a Danish company about three
contracts awarded by Norwegian contracting
authorities/entities
20

Re: III.4.The method is also useful in connection
with matters open to question
Example 21:
Hospital authorities' procurement of X-ray analysis
equipment
Re: IV.
The Commissions role in cross-border
problem-solving co-operation
Example 22:
Alleged national preferences in contract documents
and lack of clarity in the award criteria
Example 23:
Rejecting of an offer on the grounds that the bank
warranty was provided in English (and not in
Spanish or together with a translation in Spanish)
Example 24:
Change of the type of procedure during the procurement
process and close involvement of one
bidder prior to the call for competition
Re: V.
European/EU institutions are obliged to
comply with the public procurement rules
Example 25:
Complaint about the EU Commission's award of
contract for supervision and control of food aid
Example 26:
Translation into Community languages in tender
documentation from the European Parliament
The examples
Re: I.1.
The objective is equal competition conditions
Example 1:
Criterion for the award of contract of 2 years'
representation in the state in which the contract
should be executed
A Norwegian contracting entity carried out a call
for tenders for the supply of electrical equipment
under the utilities directive. In the contract documents
sent to a selected Danish candidate, the
Norwegian contracting entity included in the criteria
on which it would base the award of contract
that the tenderers should be represented in Norway
and, moreover, had been represented there during
the last 2 years. The Danish candidate which had
no fixed representation in Norway and found it
groundless to apply such a criterion in this procedure
- especially after the candidates had been
selected - asked the Danish contact point for assistance
to get this criterion withdrawn by the contracting
entity.
Taking into account the Treaty's prohibition
against restrictions on the free movement of
goods, a criterion of 2 years' representation in the
state in which the contract shall be executed is
unacceptable. Even a criterion of after-sales establishment
in that state would not be acceptable as
long as the relevant demand for service and technical
assistance etc. is met in any other way.
21

The Danish contact point authority approached
the Norwegian contact point concerning the case.
The Norwegian contact point authority immediately
took contact to the contracting entity which
admitted lack of exact knowledge of the rules of
the utilities directive. A meeting between the Norwegian
contact point authority and the contracting
entity was held with the object of clearing out the
misunderstandings. Finally, a corrective to the
contract documents stating the withdrawal of the
illegal criteria was sent to all the selected candidates
by the contracting entity. At the same time a
2 weeks' postponement of the time limit for the
receipt of tenders was fixed. Thus, the procurement
procedure was legalised in a pragmatic,
smooth manner, thereby avoiding both a formal
complaint procedure and any possible conflictual
atmosphere likely to characterise a case being pursued
through the formal complaints procedure
channels.
Information about the outcome of the procurement
procedure as to the award of the contract is
not registered.
Example 2:
Sealing of containers for foodstuffs to be shipped
in the context of EU Food Aid Policy
A Danish company complained to its contact point
about specific requirements in a number of calls
for tenders launched by the Commission concerning
the sealing of the foodstuff containers to be
shipped under the EU Food Aid programme. The
requirements were based on reference to a sealing
product of a particular make and therefore eliminated
all other products.
As it - according to the procurement rules on technical
specifications - is prohibited to indicate trade
marks, types etc., unless such indication is accompanied
by the words "or equivalent" in cases where
the contracting authorities are unable to give a
description of the subject of the contract using
specifications which are sufficiently precise and
fully intelligible to all parties concerned, the Danish
contact point addressed the competent Commission
services concerning the case.
The Commission services very quickly replied that
they had not been aware, so far, of the existence of
alternative sealing products on the market. They
promised that in future calls for tenders, this
would be taken into account in the drafting of the
tender notices. As this reaction was considered
very satisfying by the company having complained,
the case was closed as a successful solution of a
cross-border problem.
Re: I.2. The interest of the company is in focus -
not control of the procurement procedure
itself
Example 3:
Requirement that all products should be delivered
from the same factory during the entire contract
period
A Danish company complained to its national contact
point about the requirements set out in a call
for tenders (open procedure) made under the supplies
directive by a Swedish contracting authority.
In its complaint, the company i.a. referred to a
requirement that all products should be delivered
from the same factory during the entire contract
22

period (3 – 4 years). Furthermore, the company
found it an unsatisfactory and discriminating condition
that it was not specified in the tender documents,
which exact quality and accomplishment of
the products was required. It was pointed out by
the company that the actual supplier of the products
possessed the information thereof, and therefore
the tendering conditions were unequal.
The Danish contact point agreed with the complainant
that it must be regarded as a discriminating
criterion to require deliveries from the same
factory during the whole contract period. Quality
requirements must be described in an objective
manner and in a sufficiently informative way, so as
to give all interested suppliers an equal possibility
to take part in the competition for the contract.
Contact was taken to the Swedish contact point,
which agreed with the Danish view that some
errors had been made in the call for tenders, and
some additional errors were pointed out. Upon
contact by the Swedish contact point authority to
the actual Swedish contracting authority, this
made the decision to launch a new call for tenders,
thereby correcting the procedural errors earlier
made.
Only after 6 months the new call for tenders was
launched. It is sometimes necessary to keep an eye
to the realisation of the promised solution of the
cross-border problems.
Re: I.3.
The company's assessments are decisive,
i.a. for the purpose of anonymity
Example 4:
Contract negotiations started without a prior call
for tenders
A company approached its own country's contact
point because a Swedish body, which most probably
had to act as a contracting authority, had contacted
a number of companies without a prior call
for competition – apparently in order to negotiate
an envisaged new contract.
According to the information given by the complaining
company the envisaged new contract concerned
services as listed in Annex I A of the
Services Directive, and the contract value exceeded
the threshold for EU procedure. There was no
information pointing to use of a procedure with
no prior publication of a notice. It seemed therefore
obvious that the procurement rules were violated.
It appeared, however, that the complaining company
was hesitant to the idea of pursuing the case
against the actual Swedish contracting authority, in
particular because of an already existing commercial
relationship to the contracting body. On this
background, the complainant's contact point did
not go further into the case.
According to information received later on, the
company itself had contacted the contracting
authority and informed it about the view of the
contact point authority of its own country. In one
way or another the complaining company seemed
to have won at least part of the contract.
23

Example 5:
Long-term framework contracts concluded by
German contracting authorities as hindrances for
competition
A Danish mother-company – established in Germany
through a local subsidiary – complained
about the existence of long term and/or framework
contracts concluded by a German contracting
body with a number of national suppliers of electronic
handicap equipment. This arrangement was
found by the complaining company to result in an
effective exclusion of foreign suppliers from the
market in question.
As the actual contracting body was governed by
public law as mentioned in the procurement rules
and, moreover, was listed in Annex I of the Works
Directive, there might be an unlawful situation, if
the contract periods were abnormally long.
The German contact point was requested to assist,
but to that end it needed supplementary factual
information, as the Federal Ministry of Interior,
which was responsible for the contracting body
and which had been asked about the case, was not
in a position to enlighten things further.
During its trying to investigate the case, the Danish
contact point was suddenly (without any detailed
explanation) asked by the complaining company
to terminate its actions, and the case was closed.
Example 6:
Restricted, accelerated procedure applied
A company complained about a procurement procedure
initiated by a German contracting authority
for a services contract. The call for tenders was
made according to the restricted procedure. At the
same time, the accelerated procedure was invoked.
The reason for invoking the accelerated procedure
was stated in the call for tenders as ”late allocation
of budgetary resources” for the contract. The contact
point of the complainant’s country did not
find that argument justified in the light of the
jurisprudence of the European Court of Justice
relating to deviations from the ”normal” procedures
laid down in the procurement directives. In
agreement with the complainant, the German contracting
authority was approached through a practising
lawyer directly – as the contact point
colleagues in Berlin were on holiday - asking for an
explanation. It was very important for the complaining
company that the asking was made anonymously.
Therefore, a German law firm was used.
In its reply, the German authority referred to the
need to initiate the provision of services under the
contract before the expiry of the financial year
1999, as there would otherwise be a risk that the
budgetary allocation would be withdrawn.
As the complaining company (which had a privileged
customer relationship with the German contracting
authority) did not, on the background of
the answer provided, want to pursue the case further,
the case was closed.
24

Re: I.4. Complaints are not always justified
Example 7:
The purchaser was not a contracting authority
under the procurement rules
The case concerned a call for tenders divided into a
great number of lots for the construction of an
exhibition building in Germany. A Danish company
complained about a requirement for lamps to
be supplied to be of a particular brand/trade mark.
Under the procurement rules this might be a presumed
violation of the obligations with regard to
reference to specifications in tender notices.
Even if the call for tenders in question had been
advertised in the EC Official Journal, it was found
by the Danish contact point authority that the purchaser
had not been under an obligation to do so,
because, although fulfilling the requirements for
being a "body governed by public law", the body in
question was found to have a commercial character
and therefore not to be covered by the procurement
rules.
Under these circumstances (it had proved quite
difficult to obtain the relevant factual information),
the case was closed.
Example 8:
Competition Conditions cause that the tenderers
must take their measures
A small translation bureau complained, probably
on the basis of concrete experience in the past, but
in general terms, about the general Commission
policy relating to the contracting out of translation
services. The complaining company wished that
contracts be divided into lots to enable - in accordance
with stated policy objectives by the Commission
- also small and medium-sized companies to
take part in the competition on translation services.
The Commission to which the complaint was forwarded
responded that its policy in relation to the
contracting out of these translation services (which
fall under annex I B of the Services Directive) had
to be determined by the need to ensure an effective
management. This meant that a huge amount of
literally speaking, highly technical, translation
work has to be done within short delays. Therefore,
the Commission did not accept partial offers
but did not, on the other hand, prevent interested
companies to form consortia with a view to submit
offers covering the whole range of language combinations.
Such combined offers had been received.
The complaining company was informed about
the reply given by the Commission. No further
action has been taken.
Re: I.5. Information for the companies
Example 9:
A very quick solution of a procurement problem
A company – after having been informed in general
terms of the Pilot Project and the cross-border
problem-solving method - complained about a call
for tenders (open procedure) in which the German
contracting authority had defined the product
specifications with reference to a national trademark.
25

The actual contact point contacted the German
Federal Ministry of Economics, and less than 48
hours later got the response that the contracting
authority had been persuaded to take into account
offers (also from foreign countries) based on other
equivalent specifications.
This very quick reaction enabled the complaining
company to submit an offer before expiry of the
deadline. - Hereafter, there was no need for further
action.
Re: II.1. No legal powers
Example 10:
Contracting authority refused to accept delivery
of tender documents
A British supplier of scientific instruments complained
that a university in the Canary Islands
refused to accept delivery of tender documents
sent by courier. This was despite the fact that the
British company had been told that its tender
would be accepted and furthermore had notified
the contracting authority in advance of the courier
delivery. There was some doubt about the deadline
set by the university (under the open procedure)
for submission of tenders.
The Spanish contact point was asked to intervene,
and as a result the university acknowledged that a
mistake had occurred. The university agreed to
accept re-delivery of the tender documents and
allow the British company to enter the competition.
The British company was ruled out subsequently
on a technicality.
Example 11:
Selection criteria not made available to interested
companies
An Israeli company raised question to the Danish
contact point about the procedures followed by a
Danish contracting entity operating in the telecommunications
sector. (Even this sector is
excluded from the GPA of which Israel is a member,
it was covered by a bilateral agreement
between EU and Israel). The case concerned a call
for tenders in accordance with the negotiated procedure
under the Utilities Directive.
The complaining company had not been pre-qualified
to take part in the negotiated procedure. Neither
had it received useful information on why it
was not selected. The company raised the question
whether the Danish contracting entity had
observed the provision in art. 31.1 of the Utilities
Directive about making available the selection criteria
to interested companies. The Danish contact
point found that there were well-founded doubts
that this was the case.
The Danish contact point authority took contact
to the contracting entity and explained its views on
the interpretation of the said provision. After some
discussions, the result came out that both the complaining
Israeli company and two other notselected
companies were pre-qualified, as the contracting
entity did not want any doubt as to the
selection of the candidates. Thereafter, the case was
closed. No information about the outcome of the
procurement procedure is registered.
26

Example 12:
No EU-procedure applied - the annual value of
the supply was below the threshold, but the total
value of the contract exceeded the threshold
A Danish company approached its contact point
because a Swedish municipality had entered into a
2-years' supplies contract with an option of
another 2 years' supplies. The value of the annual
supply was below the threshold for EU-procedure,
but the value of the total contract - calculated as a 4
years' contract - exceeded by far the threshold.
Contact with the Swedish contact point had immediately
the consequence that the municipality concerned
acknowledged that a mistake had been
made. However, as the contract already had been
concluded, it was not possible for the Swedish contact
point to alter anything at the actual moment
but refer the complainant to the court with a claim
for compensation.
Still, the problem-solving method of the network
co-operation has the advantage that it is based
upon the persuasive power of the national competent
procurement authority vis-à-vis the contracting
authority concerned. The possibility in this
case was that the Swedish contact point authority
could influence the municipality concerned in
order at least to prevent that the awarded contract
was renewed under the option beyond the first 2-
years' period. After some discussions between the
Swedish contact point and the municipality this
result was obtained.
This case is a very illustrative example of the practising
of the problem-solving method described.
Re: II.2. Problems are to be solved in a low-conflictual
atmosphere
Example 13:
Short time limit for preparing the bid under the
Utilities Directive
In a call for tenders carried out by a Norwegian
contracting entity under the Utilities Directive -
the restricted procedure - a company from another
country was selected as a candidate and received
the tender documents 13 days before expiry of the
deadline for the entity's receipt of tenders. The
contract documentation was voluminous (95
pages) and in Norwegian language. Besides, a visit
to the site was required.
The company asked its contact point, whether it
was acceptable to give such a short time limit without
any reason.
The time limit for receipt of tenders may be fixed
by mutual agreement between the contracting
entity and the selected candidates. In this case
there was no agreement in relation to the complaining
company. The general rule is that, in the
absence of a mutual agreement, the time limit shall
be at least 24 days from the date of the invitation to
tender and in any case no less than 10 days. The
time allowed shall be sufficiently long to take
account in particular among others voluminous
documentation and the need for a visit to the site.
27

The contact point approached held that a time
limit shorter than 24 days must involve objective
criteria and explained the rules to the complaining
company. The company itself, on this basis, took
action in the case and arrived - in one way or
another - at a solution acceptable for the company.
Re: II.3. Guidelines for the network co-operation
Example 14:
A problem of competitive position treated
between The United Kingdom and Denmark
A Danish company approached its contact point
concerning a call for tenders carried out by a British
contracting authority. The procedure used was
the restricted procedure under the Supplies Directive,
and the call for tenders involved at large
amount of money and concerned a long-duration
contract. The company was in doubt whether various
steps taken by the contracting authority had
harmed its competitive position.
Within two days from the request from the Danish
contact point, the British counterpart returned –
after having contacted the contracting authority –
with information concerning the background of
the case. From Danish side additional questions
were asked, and after receiving the answers and
assessing the issues raised by the complaining
company it was found that the points of complaint
apparently were groundless.
Later on, the case rose to the surface again when
the complaining company brought new points of
complaint to the attention of the Danish contact
point. A quick correspondence took place between
the two contact points concerned.
As the Danish contact point authority still had
doubts, whether the position of the complaining
company competition-wise had been distorted
compared to the other bidders as a result of the
procedure carried out by the British contracting
authority, it requested a meeting between the two
authorities, including the contracting authority.
The purpose of the meeting being to try to seek
reassurance that the procedure had not caused the
complaining company any harm.
At the meeting the Danish authority was provided
with information, which disproved doubts that the
complaining company’s interest had been harmed.
This case illustrates the necessity of close co-operation
between the involved contact point authorities.
Also, in this case, deep considerations of
confidentiality were actualised. Under the Pilot
Project a special report on confidentiality in this
field is prepared, see Annex C.
Re: II.4. Reciprocity
Example 15:
The complainant did not receive the tender documents
in time
A Norwegian company had in time asked for the
tender documentation (to which it had further
questions) from the Danish contracting authority.
But due to unfavourable circumstances (absence of
personnel because of illness and holidays) the
company had not received the necessary documents
etc. before it would have been too late to
28

prepare an offer in due time, i.e. before the expiry
of the time limit.
The company approached directly the Danish contact
point authority, which on its side immediately
contacted the contracting authority and asked for
an appropriate extension of the deadline to be
made. This would enable the Norwegian company
to take part in the competition for the contract.
Without any discussions the deadline was postponed
shortly by the contracting authority – by
means of an amending notice in the EC OJ.
Re: III.1.Not all problems may be solved by this
method
Example 16:
Solution of a procurement problem by bringing
the case for the court
A Danish company complained about the carrying
through of the negotiations held by a Swedish contracting
entity in connection with a call for tenders
(negotiated procedure) made under the Utilities
Directive for the supply of IT-equipment.
In its complaint, the company stated that the
requirements set out originally were changed radically
during the negotiations and that the company
did not receive the full information hereof so that
it got no chance to revise its bid correspondingly.
The Danish contact point authority agreed with
the complainant that according to the provided
information the principle of equality during the
negotiations as stipulated i.a. in Article 4, par. 2,
were violated.
Contact was taken to the Swedish contact point,
which started discussions with the contracting
entity. However, after few days the complaining
company informed the Danish contact point that
the contracting entity presumably was going to
award the contract to a certain other tenderer very
soon.
The Swedish contact point authority, after having
received this information concluded that the
authority itself would not be able to prevent the
award of the contract with the necessary strength
taking into account the narrow time limit (the
case went on round New Year’s time). It therefore
recommended that the Danish complaining company
used the formal complaints system in Sweden,
i.e. went to the court (in casu Länsrätten in
the county where the contracting entity is situated).
The Danish complainant did so.
The Swedish county court at once took in the case
and asked some questions to the contracting entity.
On its side the contracting entity, then, promised
to postpone the awarding of the contract until it
had considered the points of view of the Danish
complainant. After one month the Swedish county
court decided that there was no reason for the
complaint. Already before this resolution was
given by the court, the complainant had declared
to be content with the fact that the contracting
entity before the court had promised not to deviate
from the original tender conditions.
29

Example 17:
Solution of a procurement problem by action
from the EU Commission
A Danish company drew the attention of the Danish
contact point to the fact that a French body
governed by public law had not published a call for
tenders under the Supplies Directive in the EC
Official Journal for a contract for the supply of certain
measuring equipment.
Contact was taken by the Danish contact point
authority to the French authorities, which stated
that the body in question in the legislation behind
its establishment was characterised as a commercial
body. As it had a commercial ”raison d'être” it
therefore, by definition, was excluded from the
scope of the procurement directives.
The Danish contact point authority found, however,
that there was no support for that point of
view in the relevant French legislation, and because
no reply was given to further contacts to the
French authorities, the case was sent to the Commission.
The Commission, after some time, informed the
Danish contact point that the French authorities
had admitted that the body had the status of a
body governed by public law and as such was subject
to the procurement directives.
Furthermore, the body in question suspended its
procurement procedure with a view to correct the
errors made.
Re: III.2.The method is most useful in concrete
cases
Example 18:
National legislative requirements for enrolment
in a national professional register.
An Architects' Association complained about an
apparent requirement in the Norwegian legislation
that companies (also foreign ones) wanting to take
part in competitions in Norway for public
contruction/works contracts had to enrol in a
national register. The question was raised as a matter
of principle and not as a concrete procurement
case.
The Norwegian contact point authority replied
that the legal requirement related to the more permanent
establishment of a company and not cases
of a temporary local presence, motivated f.i. by the
task to execute a concluded public construction
contract.
The case was closed it being understood that if
application of the Norwegian law in relation to
future concrete procurement cases should give rise
to problems, the question would be taken up again
by the competent authority of the country of the
complainant.
Example 19:
National legislation prescribing - apparently -
that, as a rule, the negotiated procedure should be
used for contracts concerning certain services.
A national professional association complained
about the fact that the German legislative act VOF
(the German general terms and conditions appli-
30

cable to service contracts) apparently prescribes
that, as a rule, the negotiated procedure according
to the Services Directive shall be used for contracts
concerning consultancy services in connection
with construction projects. The question was
raised as a matter of principle and not as a concrete
procurement case.
The case was under the headline of the Pilot
Project sent to the Commission. It turned out that
the Commission had received other cases concerning
this legislation. A letter was addressed by the
Commission to the complaining contact point. It
appears that VOF under German law only applies
if the service which is to be performed is of such a
nature that the agreement cannot be specified sufficiently
exactly for it to be entered into by choosing
the best tender under the rules governing
public or restricted procedure. In these cases the
contracting authorities may enter into agreements
by negotiated procedure with prior publication of
a procurement notice under Article 11 (2c) of the
public Services Directive. According to the Commission
there is, therefore, no basis for maintaining
that VOF contravenes the rules laid down in
the Services Directive.
The Commission points out that, in Germany,
contracts for consulting architects and engineering
services are, in practice, automatically regarded as
being of the nature set out in Article 11 (2c). The
Commission is examining some specific cases
where arguments are adduced that the conditions
for using the exemption clauses in question have
not been fulfilled.
Against this background the Commission has
downgraded the consideration of the complaint
sent under the Pilot Project, as this complaint did
not concern a specific case. The Commission will
inform the complaining contact point about the
progress of the above-mentioned specific cases,
which p.t. still are under consideration by the
Commission.
Re: III.3.The method is most effective in connection
with pre-contract problems
Example 20:
Complaint from a Danish company about three
contracts awarded by Norwegian contracting
authorities/entities
The complaint concerned in all the three cases the
fact that the call for tenders allegedly had been
planned with the involvement of a national supplier
- who also won the contracts. It was held by
the complainant, therefore, that there was no real
competition, nor equality of treatment in the procurement
procedures.
In the first case, the problem was whether the technical
specifications were given so that only the
national supplier in practice could comply with
them. This was not clearly found.
The second case represented a mix of technical
development and procurement. It was not completely
clear, how the public procurement rules
were applied. The conclusion was that there probably
had been a violation of the rules in this case.
31

In the third case, it was not possible for the Norwegian
contact point to clear up the facts in full. The
alleged violation consisted of irregular use of the
selection and the award criteria.
The reaction from the Danish contact point could
have been to lodge a complaint at the EFTA Control
Authority. This possibility was considered, but
as the actual contracts by far were concluded and
the works done, it was decided to stop the cases.
Still, they had brought attention to the contract
procedures and thrown light upon the awarding of
the contracts.
This example concerning contracts already
awarded (post-contract problems) shows that even
the network co-operation on problem-solving is
meant primarily for pre-contract problem-solving,
it also functions with a certain efficiency in other
situations, the key words being the network cooperation
between the national competent procurement
authorities.
Re: III.4.The method is also useful in connection
with matters open to question
Example 21:
Hospital authorities' procurement of X-ray analysis
equipment
This complaint had not regard to a concrete case,
but to the observation by a Danish company which
represents an Israeli supplier of computer software,
that the Danish market in a certain way is closed to
these products.
The X-ray analysis equipment in question consists,
broadly speaking, of X-ray machinery, laboratory
equipment, computers and IT-programmes.
According to the complainant the Danish hospitals
in general ask for total deliveries of all items by one
supplier so that the market in this way is closed for
specialised suppliers of software systems. Whereas
for instance English hospitals allow for dividing
the contract into lots, so that suppliers may be able
to tender for some or all of the goods required.
The Danish contact point authority held - as
agreed with by the other participants in the Pilot
Project - that the contracting authorities have a
wide-ranging freedom to plan and organise their
procurements. On the other hand, closing the
market in this way without an objective reason
could be in conflict with the competitional
demand behind the procurement rules - in addition
to excluding, possibly, advantageous alternative
purchases.
The Danish contact point wrote a letter to the
association of the Danish counties (hospital owners)
concerning the subject. No further action was
taken.
Re: IV.
The Commissions role in cross-border
problem-solving co-operation
Example 22:
Alleged national preferences in contract documents
and lack of clarity in the award criteria
A company found that the award of the contract in
question (Germany) was not in conformity with
the Supplies Directive. Upon agreement with the
32

German Federal Ministry of Economics, questions
were prepared by the complaining company's contact
point authority and sent to the contracting
authority, which responded very quickly. But the
views as to the legality of the procedure followed
differed.
The case was submitted to the Commission, which
initiated an art. 226 (169) procedure against Germany.
In its reply to the Commission, the German
authorities acknowledged that some formulations
in the call for tenders had not been ideal, in that
they might lead to the conclusion that there was a
national preference, and because of a lack of clarity
in the criteria for the award of the contract.
Given the fact that the German authorities had
enjoined the need to respect the EU procurement
rules on the contracting authority, the Commission
did, however, not pursue the case further.
The result of this case is positive in the meaning
that this is all which can be obtained in a post-contract
problem case (apart from possibly damages).
The support of the Commission to the network cooperation
on problem-solution is of great value
and has no doubt, a good preventive effect.
Example 23:
Rejecting of an offer on the grounds that the bank
warranty was provided in English (and not in
Spanish or together with a translation in Spanish)
A proposal for an offer of a Dutch firm has been
rejected by a Spanish contracting authority on
administrative grounds with respect to the bank
warranty in English. According to the tender documents,
it should have been provided in Spanish or
together with a translation in Spanish.
The Dutch firm informed the Dutch contact point,
who on their part contacted their Spanish counterpart.
The outcome of this discussion was that the
Spanish contact point stated that the bank warranty
provided by de Dutch firm was correct following
Spanish law, although it should have been
in the Spanish language instead of the English language.
This according the Spanish contact point is
considered a correctable item, for which reason the
Dutch firm should have been given the opportunity
for correction.
Because the Spanish contracting authority did not
want to give this opportunity, the Dutch firm
lodged a complaint with the European Commission
towards the Spanish Adminstration with the
argument that the rejection was based on false
grounds and that the European rules, in particular
rules 93/36/EEG as amended by rules 97/52/EEG
have not been followed.
The Commission stated that “the EC procurement
directives allow contracting authorities to invite
suppliers to supplement the certificates and documents
submitted or to clarify them, but they do
not require them to do so. The contracting authority
may choose not to accept the correction of
errors if it considers that this would infringe the
principle of equal treatment of all candidates.
33

Although the Spanish procurement law contains
some exceptions to the general rules on warranties,
this exceptions exist under Spanish law and cannot
be invoked as grounds for a complaint before the
European Commission”.
On these grounds the Commission closed the file.
Example 24:
Change of the type of procedure during the
procurement process and close involvement of
one bidder prior to the call for competition
A company, agent in Sweden for a German producer
of windmills, was granted the right to make
a call for competition for the supply on behalf of
the contracting entity. It seems that from the outset
the open procedure according to the Utilities
Directive had been chosen, but during the course
of events had changed into a procedure with negotiation.
A Danish company complained (only few days
before expiry of the deadline for submission of
offers) to the Danish contact point about the fact
that there were strong indications to the effect that
the German producer had been involved quite
extensively in the preparations for the windmill
project, and that there was, therefore, a big risk
that there would be no real competition on an
equal footing for the contract. Both the Danish
and German producers had submitted offers. The
value of the contract was quite spectacular.
The problems were: a) change of the type of procedure
during the procurement process, and b) the
close involvement prior to the call for competition
of one bidder having demonstrated his commercial
interest in the procurement by the submission of
an offer.
The Danish contact point approached immediately
its Swedish counterpart which came to the conclusion
that there were limits as to its possibilities to
intervene in order to change the course of the
award procedure; for this, the company had to go
to court. On this background, the Danish contact
point authority asked the Commission about its
view, and the following day the Commission services
responded that they would initiate an art. 226
(169) procedure against Sweden. Very shortly after,
a meeting was held with the Swedish Finance
Department which took the initiative to arrange a
meeting with the company charged with the carrying
out of the actual procurement procedure. This
meeting resulted apparently in an understanding
with the company to postpone its decision on the
award of the contract.
Nevertheless, the Danish contact point learnt from
the Swedish Finance Department that the competing
supplier was going to sign the contract. Under
these circumstances, the Danish supplier who had
complained lodged a complaint before the competent
Swedish court which immediately decided to
suspend the procedure for the award of the contract.
From that point, the case was out of the hands of
the cross-border problem-solving network. During
the period when the case was pending at the court,
some changes of the whole set-up occurred, and
the project was cancelled.
34

Re: V.
European/EU institutions are obliged to
comply with the public procurement rules
Example 25:
Complaint about the EU Commission’s award of
contract for supervision and control of food aid
A Danish company felt it had been unfairly passed
over regarding a contract awarded by the Commission’s
unit for supervision and control of EU food
aid concerning a service in this area.
The contract concerned - which was not directly
subject to the EU procurement rules but which was
required unconditionally to respect the equal treatment
principle under the internal rules of the
Commission, cf. example 24 - was subject to a
restricted procedure and published in the Official
Journal of the EC. The complaining company was
pre-qualified in line with a number of other enterprises.
Information about the identity of the prequalified
enterprises was provided in the invitation
to submit tenders.
The complainant had learned from a competitor
that the contract had been awarded. Shortly afterwards
the complainant received information on
this from the Commission together with the explanation
that the complainant’s tender had not complied
with the contract terms, but no detailed
information was provided as to on what points.
The complainant, who claimed that the tender
submitted complied fully with the terms of the
invitation to tender, mentioned a number of specific
conditions in connection with the procurement
procedure carried out, which were not in
accordance with the Commission’s internal rules
governing equal treatment.
The case was investigated under the Pilot Project.
The points where the Danish tender submitted to
the Commission was found to deviate from the
contract terms were identified. Some of the points
complained about in connection with the procurement
procedure could not be dismissed by the
Commission.
In relation to the complainant, however, it was
found that it was decisive whether the tender submitted
by the complainant fulfilled the requirements
of the contracting authority. If this were not
the case, it would hardly be a matter for the crossborder
network to proceed with the case, even
some points of uncertainty regarding the tender
procedure remained untouched.
Example 26:
Translation into Community languages in tender
documentation from the European Parliament
From time to time, various companies (Danish)
had complained about the procurement practice
followed by the European Parliament, in particular
about tender documentation in relation to
planned supply or services contracts which was
normally only available in French and therefore
tended to exclude non-francophone potential suppliers
or at least reduce their opportunities to compete
for the contracts.
The Danish contact point - under the Pilot Project
- submitted the problem to the European Parliament,
from which a reply was received relatively
35

quickly. In the reply, reference was made to the fact
that EU institutions, according to EU´s Financial
Regulation are under basically the same obligations
as the Member States as to the conclusion of
procurement contracts. The European Parliament
recommended that, in the absence of a similar EP
publication, information be given to interested
companies about the internal Commission publication,
the so-called vademecum for the CCAM
(the internal Commission committee on procurement
matters), which also contains requirements
in some detail as to the translation into Community
languages of tender documentation.
It seems to be implicit in the reply of the European
Parliament that this institution is basically following
the same procurement instructions as those,
which the Commission services are obliged to follow.
As no new concrete complaints have been received,
no further action has been taken vis-à-vis the
European Parliament.
36

ANNEX B:
Guidelines for Co-operation on Solution of
Cross-Border Problems in Relation to Access to
Procurement Contracts
Introduction
An important purpose of the Pilot Project is to
identify methods to obtain reliable and speedy
informal solutions to procurement market access
problems in the participating Member States. To
achieve this goal, one or more appropriate authorities/bodies
(which can be already existing authorities/bodies)
will be appointed by participants to
act as contact points for problem solution. The
contact points will co-operate with each other.
To this end, participating Member States agree, on
a mutual basis, to act in accordance with the guidelines
set out below in cases where a competent
authority/body in one participating Member State
requests co-operation in order to solve a problem
from a competent authority/body in another participating
Member State.
A question/complaint may be addressed in consultation
between the MS involved, thereby giving the
MS which has received a request the possibility to
correct an illegal behaviour, and thus leading to a
"smooth" solution of a problem, whereby recourse
to a more "formalistic" way of problem solution
can be avoided.
Requests for co-operation
Each participating Member State (MS) may
request co-operation from another participating
MS whenever it becomes aware of cross-border
problems arising from the application of the public
procurement legislation, and in cases where individual
questions and/or complaints have been
received. These questions and/or complaints may
be addressed to the complainant's home contact
point, which will inform the contact point in the
MS of the contracting authority.
Actions to be taken after a request for
co-operation
In their co-operation with a view to promote effective
solutions to cross-border problems and in this
connection, to test the effectiveness of a more
informal way of dealing with questions/complaints
and thereby solving problems, the participating
MS will:
37

a) devote adequate resources, to the extent possible,
to make immediate enquiries into the
problem, to draw the issue to the attention of
the contracting authority concerned, and to
establish whether there is in fact a problem of
market access or a breach of Community law;
b) make their best efforts to pursue all reasonable
available sources of information;
c) inform the requesting MS, on request or at reasonable
intervals, of the status of an examination/investigation
initiated and, where
appropriate, provide relevant information; the
use and disclosure of such information shall
only be for the purpose of solving a concrete
problem and shall not be disclosed as such to
other participants;
f) fully inform the requesting MS of the results of
an examination/investigation and take into
account the views of the requesting MS, if possible
prior to the adoption of a solution or termination
of an examination; and
g) in general, comply with any reasonable request
for co-operation that may be made by the
requesting MS;
h) provide statistical information on the outcome
of the treatment of requests for assistance in
the framework of the Pilot Project to the other
participating MS and the Commission.
d) promptly notify the requesting MS of any
change in their intentions with respect to with
respect to the treatment of a request;
e) make their best efforts to complete their examination
as quickly as possible, and in any case to
achieve, if possible, a solution as soon as possible
from the date where the original request
was made;
38

ANNEX C:
Confidentiality in connection with Cross-Border
Problem-Solving
This paper is intended as a contribution to a discussion
of confidentiality in connection with
Cross-Border Problem-Solving in the context of
the Pilot Project on Public Procurement. The
Guidelines which regulates the co-operation
between the participants in this area are listed in
Section 1 below.
A key element in the Cross-Border co-operation is
the informal and confidential exchange of information
between authorities in the participating
Member States. A specific case that arose in 1999
raises the question as to whether it is possible as a
matter of law to preserve the confidential nature of
information exchanged in this way. The circumstances
of the case and the general issue of confidentiality
are outlined in Section 2.
The issue of confidentiality is governed by national
law. Only a comparative analysis of the issue will
make it possible to identify the potential problem
and to develop a problem-solving strategy.
Section 3 deals with the issue of disclosure of confidential
information in respect of Danish law.
Section 4 contains an analysis of the issue of keeping
information exchanged confidential in respect
of Danish law. It is pointed out that only an obligation
under international law to keep information
received under the Pilot Project confidential will
make it – reasonably – certain that the Danish
Competition Authority in each and every case can
refuse to grant access to such information.
Conclusions and possible solutions are summed
up in Section 5.
1. The Guidelines for co-operation on Cross-
Border Problem-Solving
The Guidelines contains the following list of
actions to be taken in the event that the Public Procurement
Authority in a Member State (”MS”)
puts a request for cooperation to the authority in
another MS where the procurement procedure
complained of is taking or has taken place:
a) devote adequate resources, to the extent possible,
to make immediate enquiries into the problem,
to draw the issue to the attention of the
contracting authority concerned, and to establish
whether there is in fact a problem of market
access or a breach of Community law;
39

) make their best efforts to pursue all reasonable
available sources of information;
c) inform the requesting MS, on request or at reasonable
intervals, of the status of an examination/investigation
initiated and, where
appropriate, provide relevant information; the
use and disclosure of such information shall
only be for the purpose of solving a concrete
problem and shall not be disclosed as such to
other participants;
d) promptly notify the requesting MS of any
change in their intentions with respect to with
respect to the treatment of a request;
e) make their best efforts to complete their examination
as quickly as possible, and in any case to
achieve, if possible, a solution as soon as possible
from the date where the original request
was made;
f) fully inform the requesting MS of the results of
an examination/investigation and take into
account the views of the requesting MS, if possible
prior to the adoption of a solution or termination
of an examination; and
g) in general, comply with any reasonable request
for cooperation that may be made by the
requesting MS;
h) provide statistical information on the outcome
of the treatment of requests for assistance in
the framework of the Pilot Project to the other
participating MS and the Commission.
2. The issue of confidentiality
The issue of confidentiality may be illustrated by
mentioning an incident that occurred in 1999.
A Danish supplier of earth moving equipment,
including mine clearing and other defence vehicles,
was involved in a call for tenders in the United
Kingdom. At some point before a supply contract
had been awarded the Danish company asked the
Danish Competition Authority for assistance. It
contended that the procurement procedure in various
ways was in breach of Council Directive 93/
36/EEC of 14 June 1993 coordinating Procedures
for the Award of Public Supply Contracts (as
amended by European Parliament and Council
Directive 97/52/EC of 13 October 1997), thereby
harming its interests.
The Danish Competition Authority went into a
dialogue with the relevant British authorities. On
the basis of confidential information received from
the British authorities, in particular at a meeting in
London, the Danish Competition Authority concluded
that the Danish supplier's contentions were
ill-founded.
The supplier, however, maintained the contentions
and lodged a complaint with the Commission. It
also put a request for access to the records held by
the Danish Competition Authority. The British
authorities had repeatedly stressed the confidential
nature of the information given to the Danish
40

Competition Authority regarding the call for tenders,
and the Danish Competition Authority
refused to grant the request as regards the minutes
of the meeting held in London.
In the light of this case it seems opportune to consider,
firstly, to what extent it is possible for a
Member State to disclose confidential information
to another Member State within the framework of
the Pilot Project and, secondly, whether it is possible
under the current guidelines to keep such information
exchanged between the authorities in
different Member States confidential.
The directives on public procurement do not
appear to contain definite provisions on confidentiality
that are of importance in the present context.
In general, questions of disclosure and confidentiality
– and also access to the files and records of the
public administration – are questions governed by
national law in the various Member States.
The following sections outline how these issues are
dealt with in Danish law.
3. Disclosure of confidential information
according to Danish law.
According to Danish law, the public administration
shall keep information confidential if necessary in
order to safeguard important public or private
interests. These interests are in the main the same
as those justifying exemptions from the general
access to the files and records of the public administration.
For more details see under section 4.
In certain areas of Danish law public authorities
are specifically authorized to disclose confidential
information to public authorities in other countries.
For instance within financial control such
rights are given on the condition that the disclosed
information is kept confidential in the receiving
country.
The Danish Competition Authority has – at least
for the time being - not been given an explicit
authorization to disclose confidential information
to another Member State.
In the absence of a specific authorization under
Danish law, a public authority is allowed to
exchange confidential information with authorities
in other countries if required by a treaty obligation
undertaken by Denmark. Besides, it follows
from general principles of administrative law that
Danish authorities are in many respects – for
instance as an element of a more informal co-operation
– allowed to disclose confidential information
to other authorities, including the authorities
in other countries. The scope of this unwritten
authorization is defined by various considerations,
including the purpose of disclosing the information,
the conditions imposed on the receiving
authorities, the nature of the information and the
risk of abuse.
41

4. Danish law on confidentiality and access to
information
4.1 The acts applicable
In Denmark questions of confidentiality and access
to the files of the public administration are regulated
by the 1985 Public Administration Act (forvaltningsloven)
and the 1985 Access to Public
Administration Files Act (lov om offentlighed i forvaltningen).
The Public Administration Act and the Access to
Public Administration Files Act both lay down a
right to access to any file or record created or held
by a public authority in the exercise of its powers
or in the carrying out of its duties. The Access to
Public Administration Files Act, which invests
every person with a right to access, contains more
exemptions from the right than the Public Administration
Act. On the other hand, the latter act only
applies in cases where a public authority has made
or will make a decision and it grants the wider
access to files and records only to persons who are
regarded as parties with a special interest in the
specific case.
It is for the time being doubtful whether the assistance
provided by the Danish Competition Authority
under the Pilot Project falls within the concept
of a decision as used in the Public Administration
Act.
When asked to assist a Danish supplier in a matter
of public procurement abroad, the Danish Competition
Authority enters into a dialogue with the foreign
authority; it might get access to confidential
information and it independently examines the
case. The Danish Competition Authority might
attempt to influence its foreign counterpart.
In the context of the Public Administration Act,
the concept of a decision is given a broad interpretation.
It comprises various kinds of assistance
offered to others, possibly foreign authorities. Acts
of public authorities that are in reality preliminary
or partial decisions in cases before other authorities
are covered by the Public Administartion Act.
So is the participation of a public authority in a
decision-making process although it also involves a
foreign public authority. Furthermore, the Public
Administration Act probably applies where public
powers are used to collect information needed for
the decision-making of another, possibly foreign
public authority.
The Danish Competition Authority is of the opinion
that the assistance offered by it under the Pilot
Project does not take the form of a decision. It
would seem to require yet another extension of the
scope of the concept of a decision to bring this
kind of assistance within the Public Administartion
Act. However, it cannot be excluded that
the Danish Ombudsman in the case in question –
and in future cases – will do just that. Accordingly,
the analysis is not restricted to the Access to Public
Administration Files Act but extends to the Public
Administration Act.
In practice, interpretations of one of these two acts
are used to a certain degree on the other one.
42

4.2 General exemption of records: international
law and the foreign policy exemption
According to Article 13(1) of the Access to Public
Administration Files Act, a provision on confidentiality
in an international agreement may be taken
into account when deciding whether to grant
access to files and records held by the public
administration. Article 13(1) provides:
”The right to access may be restricted as far as
necessary in order to protect material interest
relating to …
2. foreign political or foreign economic interests of
the State, including the relations to foreign powers
or international institutions of states, … or
6. public and private interests which demand
secrecy due to the special nature of the matter”
(the Danish Competition Authority's own, unofficial
translation).
The essence of this exemption is found also in Article
15(1) of the Public Administration Act, according
to which:
”Besides, the right to access may be restricted as
far as the party's interest in using the information
contained in the record yields to crucial
interests of that party or to other crucial interests
of a private or public kind, including…
2. foreign political or foreign economic interests of
the State, including the relations to foreign powers
or international institutions of states” (the
Danish Competition Authority's own, unofficial
translation).
In principle, both provisions require that the interests
involved in the specific case are weighed up.
Nevertheless, there is a presumption that exemption
from the right to access is made where Denmark
is under a treaty obligation to keep
information received from abroad confidential.
This is in accordance with the general principle of
interpreting Danish law in accordance with international
law wherever possible.
Accordingly, in the context of the Access to Public
Administration Files Act, the Danish Ombudsman
has said that it will normally be material under
Article 13(1) not to grant access to correspondence
and information that are covered by a rule of confidentiality
under international law. It may be
assumed that the interpretation of Article 15(1) of
the Public Administration Act will not differ significantly
from this result.
The ”Guidelines for Cooperation on Cross-Border
Problems in Relation to Access to Procurement
Contracts” of 3 December 1998 can hardly be
treated as a binding agreement under international
law. However, the Guidelines sets forth in general
the terms that apply in a specific case where the
Danish Competition Authority is given access to
information held by a foreign authority. These
terms are supposedly binding in international law.
The Guidelines links the duty of an authority to
give information to a foreign authority with a pro-
43

vision on confidentiality. Accordingly, ”the use and
disclosure of such information shall only be for the
purpose of solving a concrete problem and shall
not be disclosed as such to other participants”.
It is unclear who are the ”other participants”. The
better interpretation appears to be that the phrase
refers not to the participants in the actual case
examined by the foreign authority but to the other
participants in the Pilot Project, that is, the other
foreign authorities. In the final paragraph concerning
statistical information the Guidelines
expressly refers to ”the other participating MS”.
Accordingly, it is at least doubtful whether the
Guidelines contains a provision on confidentiality
as regards the private parties involved in the procurement
procedure.
Despite the lack of an express provision, it could be
argued that confidentiality is necessarily implied
by the Guidelines. The provision relating to ”other
participants” might well be seen as merely a deduction
from a general, possibly all-inclusive principle
of confidentiality. However that may be, provisions
on confidentiality are often subjected to a restrictive
interpretation. Accordingly, a merely implied
provision on confidentiality is probably not sufficient
under the Public Administration Act and the
Access to Public Administration Files Act to
exempt information from the right to access.
In specific cases the foreign authority will often
emphasize the need for confidentiality also in
respect of private parties. In those cases confidentiality
may be treated as a legally binding condition
for receiving information that has been requested
under the same provision. One is allowed to expect
that the Public Administration Act as well as the
Access to Public Administration Files Act exempt
this information from the right to access.
This conclusion would cover all, or nearly all material
received under the Pilot Project if the Guidelines
contained an express, general provision on
confidentiality that could be treated as a condition
for receiving information in each specific case. So
long as such a provision is lacking, this line of
argument is only applicable where confidentiality
has been made an explicit condition for receiving
the material in question.
4.3 Exemption of records on a case-by-case basis:
five categories of protected interests
It is possible under the Public Administration Act
as well as the Access to Public Administration Files
Act in certain cases to refuse to give access to information
that the Danish Competition Authority has
received from foreign authorities. However, unlike
the above-mentioned exemption based on foreign
policy, these exemptions require a balancing of
interests in each case. Access to information can
only be refused if the applicant's interest in receiving
the information yields to interests in keeping
the material confidential. The act of balancing does
not have the same outcome in all cases and so these
exemptions cannot be expected to cover all cases
that might arise in the context of the Pilot Project.
Moreover, where a record is an exempt record by
reason of the inclusion in it, with other matter, of
44

particular matter, a public authority is under an
obligation to extract and grant access to so much
of the record as does not consist of the particular
matter.
In general, exemptions are given a broader scope
under the Access to Public Administration Files Act
than under the Public Administration Act. For
example, according to Article 15(1) of the Public
Administration Act exemption can only be made if
disclosure would be contrary to ”crucial”
(afgørende) interests, while ”material” (væsentlige)
interests are sufficient in respect of Article 13(1) of
the Access to Public Administration Files Act.
The relevant categories of interests that may
restrict the right to access as regards information
exchanged under the Pilot Project are:
1. Further use of the foreign policy exemption
In some cases it may plausibly be argued that disclosure
of confidential information received from a
foreign authority would cause tensions between
Denmark and the foreign state, or possibly an
international organisation. The exemption contained
in Article 13(1)(2) of the Access to Public
Administration Files Act and Article 15 (1)(2) of
the Public Administration Act might be applicable
to some of these cases, given that the information
is treated as confidential in the state of origin.
However, refusal to grant access must be based on
the facts of the specific case; it cannot be presumed
that most cases fall within the exemption.
2. Commercially sensitive information
Article 12(1)(2) of the Access to Public Administration
Files Act concerns technical information
about products and workings of businesses as well
as information about business relations. If disclosure
of such information would jeopardize a person's
or a company's material financial interests an
exemption is made from the right to access. This
exemption is applicable to call for tenders, yet the
Danish ombudsman has repeatedly stressed that it
cannot be applied on a general basis. Again a balancing
of interests in the specific case is needed.
Whereas the size of a bid can hardly be exempted
under this provision, various technical details and
information relating to company procedures and
workings important in other calls for tenders may
well be exempted.
It should be noted that the Public Administration
Act contains no provision similar to Article
12(1)(2) of the Access to Public Administration
Files Act.
3. Public financial interests
Article 13(1)(5) of the Access to Public Administration
Files Act and Article 15(1)(5) of the Public
Administration Act make exemption where access
to a record could be expected to have a serious
affect on public financial interests. This exemption
has been applied to calls for tenders as companies
may refrain from making bids in future calls for
tenders if they experience that previous bids are
disclosed, the argument being that this would seriously
affect public financial interests in the long
run. Arguably this exemption can be used to safe-
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guard public financial interests of a foreign state.
However, the ombudsman requires that the facts of
the specific case confirm that publicity may plausibly
prevent bids from being made in the future and
that this will have a serious adverse affect on public
financial interests; it cannot be used as a general
argument.
4. Public control
In certain cases it is possible to refuse access to
records if that would hamper or seriously affect the
enforcement and control efforts undertaken by
public authorities, Article 13(1)(4) of the Access to
Public Administration Files Act and Article
15(1)(4) of the Public Administration Act. These
provisions are probably applicable not only in
respect of enforcement and control exercised by
Danish authorities in Denmark but also where by
foreign authorities abroad. However, the exemption
only applies if access to a record would significantly
damage public control efforts.
5. The security or defence of the State
Under Article 13(1)(1) of the Access to Public
Administration Files Act and Article 15(1)(1) of
the Public Administration Act access may be
refused in relation to information if access to it
would affect the security or the defence of the State
adversely.
5. Conclusions and suggestions
For the time being the Danish Competition
Authority has no explicit right to disclose confidential
information to another Member State.
But as it is mentioned in Section 3 it is accepted
that Denmark can take on an obligation to
exchange confidential information with foreign
countries as an element of a more informal cooperation
as the Pilot Project on the assumption
that such information is kept confidential in the
receiving country.
As to the possibility of keeping received information
confidential the only exemption from the
right to access under the Danish law that could
have been applied to the Pilot Project as a whole is
based on foreign policy interests. In practice, any
request for access to material given to the Danish
Competition Authority under the Pilot Project
could have been refused if in all specific cases the
Pilot Project implied an obligation under international
law to keep these documents confidential. At
present, however, the Guidelines does not seem to
ensure that such an obligation applies to or is
undertaken in each specific case.
A clarification and possibly a revision of the
Guidelines would be helpful from the point of view
of Danish law. The general provision on confidentiality,
in particular the phrase ”shall not be disclosed
as such to other participants”, might benefit
from a careful revision, and the terms on which
information is exchanged in specific cases should
perhaps be worked out in greater detail.
If - as long as a clarification of the Guidelines has
not been made - in a specific case confidentiality
has been made an explicit condition for receiving
the information in question it can be assumed that
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this information is exempted from the right to
access according to the Public Administration Act
as well as the Access to Public Administration Files
Act.
In other cases so far some information given to the
Danish Competition Authority under the Pilot
Project may be exempted on a case-by-case basis
from the right to access under the Public Administration
Act and the Access to Public Administration
Files Act. Although possibly applicable to
most of the records given to the Danish Competition
Authority, these exemptions do not apply to
all of the material and they can only be applied
after having balanced the interests involved in the
specific case.
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