How much transparency does EU/EEA law require in a tender procedure?
By Dr. Simon Planzer, Planzer Law
The EFTA Court is shortly handing down a judgment that will have significant impact on future tender procedures in Europe. The ECJ’s sister court will need to answer two essential questions. First, what are the requirements for casino concession award procedures? And second, what are the consequences if these requirements are not met?
On 5 June 2014, the oral hearing in case E-24/13 Casino Admiral AG v Wolfgang Egger was held before the EFTA Court. The legal dispute arose from a casino concession award procedure. Upon a public tender, the Liechtenstein Government granted the (exclusive) concession to run a casino to Mr Wolfgang Egger. Casino Admiral AG, who had also submitted a bid, appealed the decision to the Administrative Court. That court however did neither uphold the Government decision nor did it assign the concession to Casino Admiral. Instead, it found that the award procedure had been conducted in breach of EEA law and consequently the award procedure needed to be re-opened. After an odyssey through the Liechtenstein courts, the Constitutional Court (‘Staatsgerichtshof’) finally referred the case to the EFTA Court.
In the tender documentation, the Government had noted that the various criteria would be weighted differently and that particular significance would be attached to the benefits to the Liechtenstein economy and to the casino’s planned location. The detailed evaluation form containing the concrete weighing of the various criteria was subsequently drafted by the Office for Economic Affairs but formally adopted by the Government only after the time limit for submitting bids had expired.
Following past decisions of the ECJ on similar matters (e.g., Costa & Cifone; COM v Ireland), the EFTA Court’s decision will further define the requirements that EU/EEA member states have to respect when granting concessions or licenses to gaming operators. Former judgments of that court clearly indicate that it is willing to elaborate in more detail on the requirements of EU/EEA gaming law compared to the ECJ’s rulings. The decision will offer welcome guidance regarding the rights that EU/EEA law grants to gaming operators in an award procedure and the consequences that EU/EEA states imposes where requirements are not met.
For further information, please contact http://www.planzer-law.ch/en/services/areas-of-practice/ / planzer@planzer-law.com.
