The Constitutional Court found No 484 / 2021 Coll.
The Constitutional Court found of 2 November 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
17.12.2021
484
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 24 / 21 on 2 November 2021 in plenary composed of the President of the Court of Pavel Rychetský and judges and judges Jaroslav Fenyk, Josef Fialy, Jan Filip, Jaromír Jirsy (Judge of the Rapporteur), Tomáš Líčník, Vladimir Sládeček, Radovan Suchánek, Kateřina Šimáčková, Vojtěch Šimíček, Milady Tomková and Jiří Zemánek on the design of Kapsch Telematic Services, spol. s r. o., based in Prague 8, Ke Štvanice 656 / 3, represented by Mgr. Josef Hlavik, a lawyer, in Prague 1, Na Florence enci 2116 / 15, on the annulment al § 257 (j) of Act No. 134 / 2016 Coll.
as follows:
Motion denied.
Reasons
Definition of the case
1. By constitutional complaints of 8.1.2020 and 2.4.2020, the complainant seeks the annulment of the judgments of the Supreme Administrative Court (hereinafter referred to as "NSS") No 3 As 184 / 2019-203 of 18.9.2019 and No 10 As 252 / 2019- 256 of 4.12.2019 and the judgments of the Regional Court of Brno (hereinafter referred to as "Regional Court") No 62 Af 16 / 2019- 268 of 7.11.2019 and No 62 Af 29 / 2019- 624 of 27.2.2020, since it is convinced that it has infringed its constitutional rights under Article 36 (1) in conjunction with Article 36 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter." In addition, the complainant objects to violations of Article 96 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), Articles 1, 3 (1) and 37 (3) of the Charter, Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) and Article 14 (1) of the International Covenant on Civil and Political Rights.
2. In a constitutional complaint of 8 January 2020, the complainant, pursuant to § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., also proposed the annulment of § 257 (j) of Act No. 134 / 2016 Coll., on the award of public contracts (hereinafter referred to as "ZVZZ ').
3. By resolution sp. zn. I. ÚS 69 / 20 of 28.7.2020 (the decision of the Constitutional Court is available at https: / / nalus.ujud.cz) The Constitutional Court of the Constitutional Complaints of the Complainant, originally brought under point I. ÚS 69 / 20 (formerly lodged by a constitutional complaint) and point II.ÚS 984 / 20, joined the joint proceedings, continued under point I. ÚS 69 / 20.
4. By order of sp. zn. I. ÚS 69 / 20 of 30.3.2021, the First Chamber of Constitutional Complaints in accordance with § 78 (1) of the Law on the Constitutional Court suspended and forwarded the complainant's application for annulment of § 257 (j) ZVZZ to the Plenary for a decision pursuant to Article 87 (1) (a) of the Constitution.
Recapitalisation of proceedings on the complainant's constitutional complaints
5. Although the complainant filed a motion for annulment of § 257 (1) of the Rules of Procedure. j) ZVZZ, together with a previously lodged constitutional complaint, the following recap of procedural developments also includes developments in the case of the second constitutional complaint, since both matters are actually related; At the same time, the complainant imports the unconstitutionality of the contested legal provision from the development of the two linked cases. First, two branches of administrative proceedings (II. 1) and the corresponding two branches of administrative proceedings (II. 2) are summarised. Other parts contain the complainant's arguments set out in the constitutional complaints (II. 3), the statement on the constitutional complaints (II. 4) and the assessment of the fulfilment of procedural conditions for the constitutional complaints procedure (II. 5).
Recapitalisation of administrative proceedings
6. The Ministry of Transport (hereinafter referred to as "the Ministry") led in 2017 a procurement procedure called "Electronic Toll System." A consortium of companies - CzechToll, s. r. o., based in Prague 7, Argentinian 1610 / 4, and SkyToll, a. s., based in the Slovak Republic, Bratislava, Lamačská cesta 3 / B ("the consortium of companies') has been selected as a successful candidate.
First branch of administrative procedure
7. The Office for the Protection of Competition (hereinafter referred to as "the Authority") initiated an ex officio administrative procedure on 11 October 2017 to review the acts of the Ministry in the procurement procedure in question. 1) On 27 October 2017, a further administrative procedure was initiated with the Authority on the complainant's proposal to review the procedure of the contracting authority. (2) In an administrative procedure conducted ex officio by the Authority on 23 November 2017, it issued an interim measure (3) prohibiting the Ministry from concluding a contract for the subject-matter of the contract before the final termination of the procedure. The complainant subsequently made several proposals for a review of the ministerial procedure on the basis of which further administrative proceedings were initiated. The ÚOHS therefore joined the procedure initially initiated by it on its own initiative and the procedure for the complainant's proposals into one joint procedure.
8. As part of the joint management of the ÚOHS, it first issued a decision on 9 May 2018, 4), in which it concluded that the contracting authority had failed to award the contract. The Authority, inter alia, imposed a corrective measure consisting of the cancellation of a procurement procedure and prohibited the contracting authority from concluding a contract pursuant to Paragraph 263 (8) of the ZVZZ. However, the President of the ÚOHS, in order to break down the Ministry by decision of 23.8.20185, annulled the initial decision of the ÚOHS in its entirety and returned the case to the Authority for reconsideration.
9. On 20. 9. 2018 the ÚOHS issued a further joint decision (hereinafter referred to as the "decision of 20. 9. 2018") on several statements. By Decree I, pursuant to § 257 (f) of the ZZVZZ, it decided to suspend the administrative procedure originally conducted ex officio in the specified part. By Decree II, he stopped the procedure under Paragraph 257 (b) of the ZVZZ in the specified parts on the complainant's proposal of 22 December 2017. By Decree III, it stopped the proceedings initiated on the complainant's proposal of 22 December 2017 in the specified section, since no grounds for the imposition of corrective measures under Section 263 of the ZVZZ were found. By virtue of Article 265 (a) of the RAG, the complainant's proposal of 27 October 2017 in the section specified therein was rejected as no grounds for the imposition of corrective measures within the meaning of Section 263 of the RAG were established. In its opinion, the GOI finally rejected the complainant's proposal of 15.1.20187) in the parts specified there, as no grounds for the imposition of corrective measures were found.
10. On the same day that the Authority issued a decision in a joint procedure (i.e. 20 September 2018), the Ministry - as the only original party to an administrative procedure which was ex officio - waived the right to submit a decomposition against the operative part of I of the Authority decision of 20 September 2018. Later that day, the Ministry concluded a contract to perform the subject matter of a public contract with a consortium of companies. The complainant brought a breakdown against the other statements.
11. By decision of the President of the ÚOHS of 14.12.20188), the decision of the ÚOHS of 20.9.2018 was annulled in order to decompose the complainant, to the extent that it was stated in its Rules II, III, IV and VI and the joint procedure for examining the acts of the contracting authority in the award of the contract, the contracting authority concluded, to the extent of the same statements, the contract for the whole subject matter of the contract.
Second branch of administrative procedure
12. On 24 September 2018, the complainant submitted a proposal to impose a prohibition on the performance of a contract concluded on 20 September 2018 between the Ministry and the consortium of companies on the basis of the procurement procedure in question. The ÚOHS rejected this proposal in accordance with Section 265 (a) of the ZVZZ by decision of 10.12.20189), since in its view the reasons for the imposition of a corrective measure consisting of a prohibition on the performance of the contract were not established.
13. The President of the ÚOHS, by decision of 25.2.201910, rejected the complainant's breakdown. According to the President of the ÚOHS, it cannot be concluded from the fact that a joint procedure was conducted that the initial interim measure issued in one of the partial administrative procedures should be extended to those other partial proceedings at the time of the merger. The preliminary measure prohibiting the Ministry from concluding the contract was issued only until the final termination of the administrative procedure, which was carried out by an official authority, and in which the decision was taken by the legal authority of the Court of First Instance on 20 September 2018.
Judicial review
14. The two branches of administrative proceedings described above subsequently resulted in judicial review by administrative courts - also in two parallel branches.
First branch of judicial review
15. The Regional Court annulled the decision of the President of the ÚOHS of 14. 12. 2018 and returned the case to him. According to the Regional Court, for the purposes of § 257 (j) of the ZVZZ, the contract which was concluded in spite of the ban on its conclusion resulting from the interim measure issued by the ÚOHS cannot be regarded as concluded.
16. The Regional Court concluded that, in the present case, the ÚOHS led two administrative proceedings, both concerning the procedure of the same contracting authority, the same procurement procedure and the same question. If, following the concentration of administrative procedures, two statements on the same subject were taken in parallel, the two statements constitute one whole and could therefore not have obtained legal authority on their own. The Court of Justice of the European Union, acting in accordance with the procedure laid down in the Rules of Procedure of the Court of Justice of the European Union, shall have the power to adopt delegated acts in accordance with the procedure laid down in this Article. The Regional Court subsequently concluded that the contract for the performance of the subject-matter of the contract in question was concluded in contravention of the preliminary measure resulting from the decision of the ÚOHS of 23 November 2017.
17. The Supreme Administrative Court, by judgment No 3 As 184 / 2019-203 of 18 September 2019, annulled the judgment of the Regional Court of 15 May 2019 and returned the case to him for further proceedings. The conclusion of the contract is, according to the NSS, a "frontier point ', after which corrective measures are reached without legal and practical meaning, and therefore the possibility of using the Institute for the prohibition of performance of the contract to ensure that the subject matter of the contract is not fulfilled as a result of non-compliance with the procurement regulations. This does not change the question of the possible (not) validity of the contract for its contradiction with the provisional measure; that assessment is for the courts in civil proceedings.
18. The Supreme Administrative Court further stated that Act No. 134 / 2016 Coll., on the award of public contracts, as amended, expressly grants the ÚOHS the power to assess whether the conclusion of the contract was not in breach of certain public procurement rules. If a contract has been concluded through a prohibition resulting from an up-to-date interim measure, the case is explicitly foreseen in Paragraph 254 (1) (b) of the ZVZZ. The assessment of whether this is actually the case is solely for the ÚOHS, which may impose on the contracting authority a prohibition on the performance of the contract within the meaning of the first sentence of Paragraph 264 (1) of the first ZVZZ. If this is the case (and are not specific cases referred to in § 264 (3) to (5) of the ZVZZ), the ex-ZVZZ contract has been null and void (§ 264 (1) of the second ZVZZ). This is the case, according to the NSS, in the case under consideration, in which the prohibition on the performance of a contract under Paragraph 264 (1) of the ZZVZZ was not imposed and the contract concluded for the performance of the contract must be regarded as valid. The NSS concluded that, in the case of the agreement of 20 September 2018 on the conduct of the legal proceedings, the existence of a legal fact, combined with Article 257 (j) of the ZVZZ, would not result in a termination of the review procedure.
19. Bound by the opinion of the NSS, the Regional Court subsequently dismissed the complaint of the complainant by the contested judgment No 62 Af 16 / 2019-268 of 7 November 2019.
Second branch of judicial review
20. The Regional Court, by judgment No 62 Af 29 / 2019-511 of 11 July 2019, annulled the decision of the President of the ÚOHS of 25 February 2019 and the decision of the ÚOHS of 10 December 2018 and brought the case back to proceedings. The Regional Court concluded that, where joint proceedings are conducted on the basis of a concentration of previously held proceedings on the same substantive issues or the same acts of the contracting authority, the interim measure once issued should "apply 'until the administrative procedure as a whole is completed. The Regional Court then concluded that the contract for the performance of the subject-matter of the contract in question was concluded in contravention of the preliminary measure resulting from the decision of the ÚOHS of 23 November 2017.
21. The Supreme Administrative Court subsequently annulled the judgment of the Regional Court of 11.7.2019 in Case No 10 As 252 / 2019-256 of 4.12.2019. As regards the interim measure of 23.11.2017, it stated that the decision of the ÚOHS of 20.9.2018 concerning the ex officio procedure was annulled. The provisional measure could not extend its effects to further proceedings under the joint procedure as these partial proceedings are of a separate nature and existence. In the absence of a new one after the expiry of the provisional measure of 23 November 2017, the contract of 20 September 2018 was not concluded in contravention of the provisional measure and therefore the conditions for imposing a prohibition of performance under Paragraph 264 in conjunction with Paragraph 254 (1) (b) of the ZVZZ were not fulfilled.
22. According to the NSS, it is essential that, at the time of the termination of the preliminary measure of 23 November 2017, the ÚOHS was obliged to issue further interim measures to ensure the purpose of the pending procedure for the review of the acts of the contracting authority initiated on the complainant's proposal so that the procedure was not thwarted by the conclusion of a contract. However, the incorrect (illegal) procedure of the ÚOHS, consisting of not issuing provisional measures, cannot affect the effectiveness of the contract concluded, and therefore it is no longer possible to grant protection to the complainant through the administrative judiciary.
23. Bound by the opinion of the NSS, the Regional Court subsequently dismissed the complainant's action by the contested judgment No 62 Af 29 / 2019-624 of 27 February 2020.
The complainant's argument
24. According to the complainant, the extensive argument of the complainant set out in the constitutional complaints can be summarised as follows: According to the complainant, the contracting authority examines in the procedure for reviewing the procedure in the procurement procedure under Act No. 134 / 2016 Coll., as amended, in addition to the general legality of the procedure of the contracting authorities, whether the contracting authorities have infringed the public subjective rights of the tenderers for a specific contract. The primary protection of the rights of tenderers - including the fundamental right to equal treatment and the prohibition of discrimination provided for in Articles 1 and 3 (1) of the Charter - is to be implemented in the context of this procedure. However, Paragraph 257 (j) of the ZVZZ, as interpreted by the NSS, states that, according to the complainant, the legal order to terminate the procedure in the event of the conclusion of a contract for the performance of a public contract withdraws that protection. The provisions in question prevent not only the continuation of the administrative procedure with the ÚOHS as "another body 'within the meaning of Article 36 (1) of the Charter, but also subsequent access to the Court under Article 36 (2) of the Charter.
25. According to the complainant, both the ÚOHS and the administrative courts deny it the protection of its public subjective rights with reference to another procedural institute - the imposition of a prohibition on the performance of a contract, which is different from the review of the procedure of the contracting authority. According to the complainant, the possibility of excluding protection as a result of the conduct of one of the parties, which may in its own right influence whether or not the proceedings will be terminated, is contrary to the principle of equality of the parties under Article 37 (3) of the Charter.
26. The interpretation of Paragraph 257 (j) of the PSO adopted by the NSS is, according to the complainant, formalistic and leads to a denial of the practical importance of the interim measures. According to the complainant, the provision in question may be interpreted in a constitutional manner in such a way that the conclusion of a contract for the performance of a contract leading to the termination of the procedure is not regarded as contrary to the law or as a result of an unlawful procedure of the Authority or the contracting authority.
27. In relation to the second branch of the judicial review, the complainant submits that the administrative authorities and the courts infringed its right to so-called other legal protection and to an effective review of the procedure of the public administration. The complainant points out the case law of the European Court of Human Rights (hereinafter "the ECHR '), according to which Article 6 (1) of the Convention implies the right to a proper and lawful decision to award a public contract (reference to the ECHR judgment of 13 June 2018 in the case of the Mirovni Institute against Slovenia, No 32303 / 13; the ECHR decision is available at https: / / hudoc.echr.coe.int /).
28. In the second heading of the objections, the complainant submits that the administrative courts have interpreted Paragraph 140 (7) of the Administrative Regulation in a way contrary to the principle of equality of "arms'. According to the constitutionally consistent interpretation, the interim measure granted under the ex officio procedure would not have disappeared, so at the time of the conclusion of the contract on 20 September 2018 the ban on the conclusion of the contract lasted and the reason for imposing a prohibition on the performance of the contract under Paragraph 254 (1) (b) of the ZVZZ.
Statement on constitutional complaints and replies
29. The Judge-Rapporteur, pursuant to Article 42 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), invited the parties to the proceedings and the interveners of the proceedings on constitutional complaints to comment on the complainant's constitutional complaints.
Observation of administrative courts
30. As regards the first branch of the NSS judicial review, it stated that if the legality of the decision of the ÚOHS to terminate the procedure for reviewing the acts of the contracting authority was and has been addressed, it is no longer possible for such acts to be further assessed for their legality. Where the conclusion of a contract for the subject-matter of a contract is contrary to the law for one of the reasons set out in Paragraph 254 (1) of the ZVZZ, the tenderer may defend his rights in the procedure for imposing a prohibition on the performance of the contract. According to the NSS, it is not clear what subjective rights of the complainant should have been affected by the exclusion of a substantive examination of the acts of the contracting authority. The rights arising from compliance with the general principles of public procurement as laid down in Section 6 of the BTI may be protected by a prohibition on the performance of the contract.
31. As regards the second branch of the NSS judicial review, it was concluded that the interim measure of 23 November 2017 had ceased to exist at the time of the acquisition of legal power in the judgment of the Court of Justice of 20 September 2018, which terminated the procedure ex officio. The INOHS was wrong if it did not issue further interim measures ensuring the purpose of the pending review procedure leading to the complainant's proposal. However, according to the NSS, this cannot change the conclusion that the interim measure had not been granted and the contract could not have been concluded contrary to it. In the procedure for the application for review of acts by the contracting authority, the ÚOHS shall ensure that it is decided in substance at a stage where the infringement of the contracting authority may still be ruled out, i.e. before the expiry of the blocking period. Its expiry must be avoided by all legal means, in particular by ensuring the swift and smooth decision-making of the administrative authority, or by issuing interim measures, as appropriate.
32. The Regional Court merely referred to the decisions given by it in the present case.
Expression of the ÚOHS and Ministry of Transport
33. In its observations, the ÚOHS stated, first, that a review of the procedure of the contracting authority in the procurement procedure is only possible until the conclusion of the procurement contract and that the contract is terminated without exception (it is terminated). The prohibition of performance of the contract may be imposed only for reasons under Act No. 134 / 2016 Coll., as amended, inter alia if the contract was concluded through a ban on its conclusion pursuant to § 254 (1) (b) of the ZVZZ. In the present case, according to the ÚOHS, the prohibition on the conclusion of a contract was imposed on the contracting authority in a procedure which was final and the interim measure was terminated; The complainant's proposal to ban compliance could therefore not be granted. The ÚOHS further stated that it was under no obligation to impose (further) provisional measures prohibiting the conclusion of a contract.
34. As regards the alleged denial of the right to judicial protection of the ÚOHS, he stated that Act No. 134 / 2016 Coll., as amended, foresees two lines of review of the procedure of the contracting authorities: 1. review of the procedure of the contracting authority during the procurement procedure; 2. Review initiated on the proposal to impose a prohibition on the performance of a contract. Under the first line, corrective measures may be imposed in accordance with Section 263 of the ZVZZ aimed at healing the procedure of the contracting authority. In the second line, a prohibition on the performance of an already concluded contract may be imposed in a situation where the contracting authority has not at all allowed its procedure to be reviewed or the review already initiated has thwarted the conclusion of the contract through an existing ban to do so (cf. § 254 (1) of the ZVZZ). The imposition of provisional measures shall also take into account the legitimate interests of the party against whom the provisional measures are to be directed - in this case the interests of the contracting authority. There may be situations where the interest in successful completion of the procurement procedure outweighs the interest in completing the review of the procedure of a particular contracting authority.
35. The Ministry stated in its observations that, in the present case, the importance of the Institute of the so-called Blocking Time under Paragraph 246 of the ZVZZ and the imposition of provisional measures after its expiry should be an exceptional institution. The procedures of the contracting authority in the procurement procedure shall be subject to review, but the period for which it is intended shall not be unrestricted. In addition to the public interest in reviewing the procedures of the contracting authority, there is also a public interest in ensuring the functioning of the State. If, according to the Ministry, the legislature had sought that the contracting authority should not sign a contract in any case until the review procedure has been completed, it would have explicitly introduced such a ban into the law. According to the Ministry, the complainant overlooks Article 36 (4) of the Charter under which the conditions and details of the right to judicial and other legal protection are governed by the law. The principle of proportionality is ensured by the blocking period in conjunction with § 257 (j) ZVZZ.
Observation of the consortium of companies
36. The extensive comments of the consortium of companies can be summarised as follows: firstly, the complainant's objections to the ministerial procedure were examined and rejected as unfounded in the administrative proceedings. Secondly, the complainant absurdly imports the shortening of its rights in a situation where, by its procedural tactic, the review of the procedure by the contracting authority deliberately delayed in order to thwart the procurement procedure. Thirdly, the Constitutional Court has come to the clear conclusion in the past that constitutional complaints are manifestly unfounded in similar cases. Fourthly, the complainant's right to judicial or other legal protection under Article 36 of the Charter and Article 6 (1) of the Convention has not been infringed because the complainant is not a rightholder with a substantive basis which should be affected by the denial of access to the Court. In addition, the complainant has other means of redress (compensation proceedings caused by an unlawful decision or maladministration) which it has not yet exhausted. Fifth, the interpretation of Paragraph 140 (7) of the NSS's administrative order was the only possible interpretation of that provision in the light of the text, meaning and purpose and could not interfere with the complainant's rights. Sixthly, constitutional complaints cannot be met either because this would unduly affect third parties' rights.
Replica
37. In its reply, in addition to the arguments already put forward in its constitutional complaints, the complainant pointed out that the Ministry's procurement procedure had never been considered meritantly. According to the complainant, the interpretation of § 257 (j) of the ZVZZ applied by the NSS would lead to the establishment of a practice contrary to the principles of this law. If one of the suppliers were to submit an "unpleasant 'objection to the contracting authority or to submit a proposal to the ÚOHS for which the contracting authority would not know whether it could defend its conduct before the ÚOHS, it could simply not respond and conclude a contract with the selected supplier, thereby automatically applying Article 257 (j) of the ZVZZ, i.e. the procedure would be terminated and its review would no longer be possible in substance.
Presumption of proceedings on constitutional complaints
38. The two constitutional complaints were lodged by an authorised person as the complainant was a party to the proceedings before the administrative courts [cf. Section 72 (1) (a) of the Constitutional Court Act]. Constitutional complaints are timely as they were lodged within two months of the notification of the judgments of the Regional Court under appeal (§ 72 (3) of the same Law) and are not inadmissible within the meaning of § 75 (1) of the same law, since the complainant has exhausted all the procedural means provided by the Administrative Rules for the Protection of Rights. The complainant is duly represented by a lawyer (§ 30 (1) of the Law on the Constitutional Court, as amended by Act No. 83 / 2004 Coll.) and the Constitutional Court is responsible for dealing with constitutional complaints.
Submission to the Constitutional Court of the motion for plenary
39. On the basis of the documents collected, the First Chamber of the Constitutional Court concluded that the complainant's action proposal ("the appellant ') for the annulment of Article 257 (2) of the Treaty on the Functioning of the European Union (" TFEU'). j) According to Article 78 (1) of the Law on the Constitutional Court, the ZVZZ must be referred to the full court for a decision pursuant to Article 87 (1) (a) of the Constitution. According to the First Chamber, the application of the provision in question clearly gave rise to a fact which is the subject of the present constitutional complaints (Section 74 of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll.) and the appellant's objections cannot be regarded as manifestly unfounded [Paragraph 43 (2) (b) of the Law on the Constitutional Court]. The First Chamber therefore suspended the proceedings concerning the constitutional complaints of the complainants by means of resolution sp. zn. I. ÚS 69 / 20 of 30.3.2021.
Expression and replica
40. The Judge-Rapporteur, pursuant to Article 69 (1) of the Law on the Constitutional Court, requested the parties to submit their observations on the application for annulment of the contested provision, sent the application to the Government pursuant to Article 69 (2) of the same law and to the Ombudsman, who did not intervene in the proceedings, pursuant to paragraph 3 of the same provision.
Observations of the parties
41. The Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as "the Chamber of Deputies") has limited itself to a description of the course of the legislative process. Both chambers of Parliament have agreed to the proposal of the EAW, the law in question has been signed by the relevant constitutional authorities and has been duly declared. According to the Chamber of Deputies, it is up to the Constitutional Court to examine the question of the inconstitutionality of the provision under review and to decide on a motion for its annulment.
42. In the opinion of the Senate of the Parliament of the Czech Republic ("the Senate '), apart from the recap of the legislative process, it is stated that the contested provision was not discussed by the Senate plenary or by individual committees. The bill was debated within the limits of the Constitution's established competence and in a constitutionally prescribed manner and the Chamber of Deputies subsequently adopted the proposal as approved by the Senate. According to the Senate, it is up to the Constitutional Court to examine and rule on the application for annulment of the contested legal provision.
Government observations
43. The Government has exercised its authority under Paragraph 69 (2) of the Law on the Constitutional Court, entered the proceedings as an intervener and has proposed that the Constitutional Court reject the application for annulment of Paragraph 257 (j) of the ZVZZ. The Government first refers to the adaptation of Council Directive 89 / 665 / EEC on the coordination of laws, regulations and administrative provisions relating to the review procedure for the award of public supply and works contracts, as amended by Directive 2007 / 66 / EC of the European Parliament and of the Council (the review Directive). Act No. 134 / 2016 Coll., as amended, provides for two types of review of the procedure by the contracting authority following the review directive: 1. review before the conclusion of the contract; 2. post-contract review. The first type of review shall monitor the remediation of errors committed by the contracting authority during the procurement process. Without the ongoing procurement procedure according to the Government, there is no room for redress. This is also the case with Paragraph 263 (2) of the ZVZZ, according to which "standard 'remedies can only be imposed if a contract has not been concluded. The conclusion of the contract is a notional milestone with which the law links, inter alia, the termination of the contract procedure (Paragraph 51 (1) of the ZVZZ). If the administrative procedure were to continue, the appellant would not have been able to achieve the desired effect of the corrective measure, which could either not be imposed (because the procurement procedure had already been terminated) or would not have effectively affected the course - at that stage already exhausted - of the procurement procedure.
44. The Government points out point 4 of the review directive and states that Paragraph 257 (j) of the ZVZZ fits into the system of review and correction of the contracting authority's procedure, as regulated by the review directive. According to the Government, the distortion of this system would lead to irrational situations in which corrective measures having zero effect would be imposed before the end of the procurement procedure, or would be forced by the contracting authority even after the conclusion of the contract to continue the procurement procedure and to conclude a duplicate contract for the subject matter in question.
45. According to the Government, the procedure under the provision under review constitutes a predictable, legitimate, rational and systematic review of the procedure by the contracting authority of the consistent regulation of the right to a fair trial. Even after the conclusion of the contract, the review power of the EOHS is not excluded as the applicant may submit a proposal to impose a prohibition on the performance of the contract. Although, in the event of a prohibition on the performance of a contract, no corrective action is imposed which may be imposed before the conclusion of the contract, the resulting situation is comparable to that of, for example, the cancellation of the procurement procedure. The administrative procedure for the application to impose a prohibition on the performance of a contract thus constitutes an alternative to an administrative review procedure.
46. The Government also points out that the appellant's right to judicial review is not a termination of the administrative procedure under Article 257 (2) of the Treaty. (j) ZVZZ is affected because, in addition to the administrative review procedure, the appellant has the possibility to claim compensation before civil courts, which was due to errors on the part of the procuring entity in the procurement procedure.
47. According to the Government, the annulment of Paragraph 257 (j) of the ZVZZ would not lead to a correction of the alleged unconstitutional state, since, together with that provision, it would be necessary to amend § 51 (1) of the ZVZZ and § 263 (2) of the ZVZZ, which prevent the imposition of any corrective action after the conclusion of the contract. In Act No. 134 / 2016 Coll., as amended, a mechanism would have to be implemented which would make the validity of the contract conditional on its conclusion in accordance with the ZVZZ.
Replication of the appellant
48. In addition to the arguments contained in the submissions summarised above, the appellant stated that it was misleading and factually incorrect in its observations by the Government. Although the Government argues that the appellant is competent to review the procedure of the contracting authority in the procurement procedure, it does not present any variant of a legally acceptable substantive review of the procedure of the contracting authority. According to the appellant, such an alternative cannot be an administrative procedure for prohibiting the performance of a contract because the purpose of this type of procedure is diametrically different. This is to prevent the performance of a public contract (performance of a contract) in cases where the contracting authority has not in fact carried out a tender and concluded the contract directly with the selected supplier.
49. According to the appellant, by concluding the contract, the review of the procurement procedure and the related request (i.e. a proposal within the meaning of Act No. 134 / 2016 Coll., as amended) need not be exhausted and become "irrelevant '; the non-application would be subject to a consistent assessment by the Authority in any individual case. According to the appellant, the review directive in Article 2 (9) defines the minimum requirements for the surveillance process over the procurement of public contracts, including the obligation to provide detailed written justification; According to the appellant, the requirement for a substantive examination of the contested facts before the supervisory authority may be derived from that obligation. The appellant also points to Article 2 (1) of the review directive, which defines the requirements for the measures to be taken in the context of the review. The Union's adjustment according to the appellant does not know the possibility of a non-definitive termination of the review process.
50. As regards the irrationally alleged consequences of the continuation of the review procedure even after the conclusion of the contract, the appellant states that, although the possible imposition of measures for contracting entities may be problematic, it is the contracting authority that concluded the contract before any doubts about its procedure were settled. The need to adopt the necessary follow-up legislation in the event of the repeal of the contested ZVZZ provision cannot justify maintaining an unconstitutional standard.
Abandonment of oral proceedings
51. The Constitutional Court did not expect further clarification of the case from the oral hearing, so it waived the first sentence of Paragraph 44 of the Constitutional Court Act.
Derogation of the contested provision
52.
"The Office shall terminate the proceedings initiated by a resolution if, in the course of the administrative procedure, the contracting authority has concluded a contract to carry out the subject matter of the contract under review [...]. '
Proceedings before the Constitutional Court
53. According to Article 64 (1) (e) of the Law on the Constitutional Court, an application for annulment of the law or its individual provisions pursuant to Article 87 (1) (a) of the Constitution is entitled to be filed by the person who lodged a constitutional complaint under the conditions laid down in Article 74 of that Law. It follows from that provision that, together with a constitutional complaint, an application may be made for the annulment of a law or its individual provisions, the application of which resulted in a fact which is the subject of a constitutional complaint if, according to the complainant's claim, they are contrary to a constitutional law.
54. In order to assess the appellant's entitlement to file an application for annulment of the contested provision pursuant to Article 64 (1) (e), in conjunction with Article 74 of the Law on the Constitutional Court, it is necessary to assess whether the application of that provision resulted in a fact which is the subject of a constitutional complaint, i.e. whether the contested fundamental rights could have been infringed by it. Such application of the contested provision is a matter where there is a close link between the constitutional complaint contested by the decision and the provision of the law proposed for annulment in the sense that, if it were not for the contested provision of the law, the contested decision [see paragraph 57 of the decision sp. zn. In other words, in the case of the appellant, the possibility must be given to reflect a possible error in the outcome of the proceedings on a constitutional complaint, although there may also be facts which, despite the application of a non-constitutional law, will not allow [typically the protection of the rights of other persons who have acted in confidence in the non-constitutional law; preventing the non-application of an unconstitutional law from having more adverse consequences for the appellant than its application; the need to avoid a threat to the State's ability to perform its functions; the unacceptable impact on the state budget or threat to other comparable public interest; See point 19 of the sp. zn.
55. In the present case, the Constitutional Court concluded that the procedural conditions for the annulment of Paragraph 257 (j) of the ZVZZ are fulfilled. The appellant is a legitimate body for bringing an application for annulment of the contested provision because it submitted it together with a constitutional complaint, which was directly against the termination of the procedure for the review of the ministerial procedure under Paragraph 257 (j) of the ZVZZ. If it had not been for the contested provision, the ÚOHS would not have stopped the review procedure of the contracting authority on the basis of the conclusion of the contract. In the present case, any conclusion on the non-constitutionality of the contested provision could lead to compliance with the appellant's administrative action, since, without Paragraph 257 (j) of the CCI, the ÚOHS would lack the legal basis for the decision in question.
56. The application is also admissible within the meaning of Section 66 (1) of the Constitutional Court Act, since the contested Section 257 (j) of the ZZZZZ was declared in the Collection of Laws and before the application was served on the Constitutional Court, it did not expire. Nor is there any reason to terminate the procedure under Paragraph 67 (1) of the Constitutional Court Act, since the provision under review has not expired in the course of the proceedings before the Constitutional Court.
Progress of the legislative process and assessment of its constitutional conformity
57. The legislative procedure for the adoption of the ZZZZ, which also includes the contested provision, was already reviewed by the Constitutional Court by the finding of sp. zn. Pl. ÚS 7 / 19, in which the Constitutional Court concluded that the ZZZZZ was adopted in accordance with the quorum and with the majority of the votes set out in Article 39 (1) and (2) in conjunction with Article 47 (2) of the Constitution, was duly signed and declared in the Collection of Laws and was therefore issued in a constitutional manner and within the limits of the powers laid down by the Constitution. For the sake of clarity, the Constitutional Court refers to the reasoning for the finding cited (in particular paragraphs 22-28). After all, the appellant does not object to the legislative process.
Substantial review of the Constitutional Court
58. The Constitutional Court assessed the content of the appellant's application and the observations of the parties and concluded that the application could not be complied with. Before the Constitutional Court justifies its conclusion on the consistency of the contested § 257 (j) of the ZVZZ with the constitutional order (IX. 3), the Constitutional Court will summarise the legal context of the review of the acts of the contracting authority in the procurement procedure (IX. 1) and briefly summarises the general starting points concerning the right to judicial and other legal protection, the right to a substantive decision and the prohibition of the exclusion of judicial review (IX. 2).
Review of the acts of the contracting authority in the procurement procedure
59. The Constitutional Court, when examining the application for annulment of the contested provision, cannot disregard the overall context of the legislation governing the review of the acts of the contracting authority in the procurement procedure. First of all, it should be pointed out that Paragraph 6 (1) and (2) of the ZVZZ provides that the contracting authority must respect the principles of transparency and proportionality and, in relation to suppliers, the principle of equal treatment and non-discrimination. The Act distinguishes between two phases of supervision by the ÚOHS over compliance with the rules laid down by Act No. 134 / 2016 Coll., as amended: 1. the procedure for reviewing the acts of the contracting authority prior to the conclusion of the contract; 2. the procedure for imposing a prohibition on the performance of a contract after the conclusion of a contract.
60. The procedure for reviewing the acts of the contracting authority before the conclusion of the contract shall be initiated on a written proposal by the appellant or on an ex officio basis. The application may be made against all acts and omissions of the contracting authority which do not comply with Act No. 134 / 2016 Coll., as amended, and which result in or threaten to harm the rights of the applicant (§ 249- 250 ZVZZ). If the contracting authority fails to comply with the rules laid down for the award of a contract or for a special procedure under Part Six of the Tender, thereby affecting or likely to affect the selection of the supplier or the selection of the Tender, and at the same time the contract has not yet been concluded, the Tender shall cancel the procurement procedure as a whole or only a single act by the contracting authority. The ÚOHS will reject the proposal under Paragraph 265 (a) of the ZVZZ if no grounds for the imposition of corrective action have been identified.
61. In the course of the review procedure prior to the conclusion of the contract, the contracting authority referred to in Articles 246 (1) (d) and 246 (2) of the ZVZZ may not conclude a contract with the supplier within 60 days of the date of the opening of the procedure. The Act thus regulates the operation of the so-called blocking period in which the contracting authority is not allowed to conclude a contract, thereby enabling other tenderers to seek redress at the ÚOHS, if they consider that the contracting authority acted in breach of Act No. 134 / 2016 Coll., as amended. The blocking period is intended to ensure the acceleration and streamlining of the surveillance activities of the OOHS in order to allow for the rapid preparation of a coercive decision (see the explanatory report on the ZVZZ, § 246). According to the explanatory memorandum to the Public Procurement Act, the regulation of the preliminary measure prohibiting the conclusion of a contract under the general rules of the administrative procedure is designed to constitute an exceptional institution after the expiry of the blocking period; the special arrangements for blocking periods are intended in this respect to compensate for the absence of special arrangements for interim measures (Court, D. et al. Public procurement law. Comment. Praha: C. H. Beck, 2017, with 1171).
62. (j) ZVZZ shall cease when the contracting authority has concluded a contract during the administrative procedure; the procedure will also be terminated, for example, because the contracting authority has cancelled the procurement procedure or if the required deposit has not been lodged (see Section 257 ZVZZ). The explanatory memorandum to the Public Procurement Act is based on the assumption that the conclusion of a contract in the course of the review procedure at the stage prior to the conclusion of the contract leads to a "bottlenecks' of the purpose of the procedure, which becomes" without purpose '(see the explanatory memorandum to the ZVZZ, § 246).
63. Once the contract has been concluded, only an application may be made to impose a prohibition on the performance of the contract. According to Article 254 (1) (b) of the ZVZZ, a proposal to impose a prohibition on the performance of a contract may be made by the appellant who claims that the contracting authority has concluded a contract despite the prohibition on its conclusion provided for by Act No. 134 / 2016 Coll., as amended, or by an interim measure. The ÚOHS shall, pursuant to Article 264 (1) of the ZVZZ, impose a prohibition on the performance of a contract on the contracting authority in a procedure initiated on a proposal if the contract was concluded in accordance with the procedure referred to in Article 254 (1) of the ZVZZ; At the same time, the contract in respect of which the ÚOHS has imposed a prohibition of performance is fundamentally invalid from the outset. However, if the contracting authority demonstrates that the reasons for the special consideration relating to the public interest require that the performance of the contract be continued, the Authority shall set in the decision a time limit of no more than 12 months with the expiry of which the performance of the contract is prohibited (Paragraph 264 (3), first sentence, of the ZVZZ). Paragraph 264 (4) of the ZVZZ also provides that the ÚOHS shall not impose a prohibition on the performance of a contract if the contracting authority proves, in addition to the facts referred to in paragraph 3, that it is not sufficient to protect the public interest in question to set a time limit within the aforementioned meaning.
64. The legal regulation of the review procedure of the contracting authority implements the Union regulation in accordance with the abovementioned review directive, which aims to strengthen guarantees of transparency and non-discrimination, while ensuring effective and rapid remedies for infringements of public procurement law. Pursuant to Article 1 (3) of the review Directive, Member States shall ensure that the review procedure is made available at least to any person who is, or was, interested in obtaining a contract and who, as a result of an alleged infringement, has incurred or threatened damage.
65. National authorities shall have competence in accordance with the review Directive: (a) to take precautionary measures as quickly as possible to remedy the alleged infringement or to prevent further harm to the interests concerned; (b) abolish an unlawful decision or other act of the contracting authority, and (c) grant compensation to persons harmed by an infringement (cf. Article 2 (1) of the review Directive). These powers may be distributed among the different bodies responsible for the review procedure (Article 2 (2) of the review directive). Where the authorities responsible for the review procedure are not the courts, provision must be made in such a case to ensure that the alleged unlawful measure of the review body or the alleged defect in the exercise of its powers is subject to judicial review (Article 2 (9) of the review directive).
66. In addition, the review Directive explicitly provides that Member States shall ensure that "the contracting authority may not conclude a contract before the review authority decides on a proposal for interim measures or a review. The suspension shall end at the earliest by the expiry of the grace period referred to in Articles 2a (2) and 2d (4) and (5)" (Article 2 (3) of the review Directive). In accordance with Article 2a (2) of the Review Directive, the contract may not be concluded before the expiry of a period of at least 10 (or 15) calendar days from the day following the date on which the award decision was sent to the tenderers concerned. Otherwise, the review procedures "do not necessarily automatically suspend [...] the procurement procedures to which they relate '(Article 2 (4) of the review directive). Finally, the second subparagraph of Article 2 (7) of the Review Directive provides that" except in the case where a decision must be annulled prior to the award of compensation, a Member State may further provide that, after the conclusion of a contract [in accordance with the above rules], the powers of the authorities responsible for the review procedure are limited to the granting of compensation to persons harmed by an infringement'.
67. In the past, the General Courts have already dealt with the compliance of the national regulation of Act No. 134 / 2016 Coll., as amended, with the review directive. In doing so, they concluded that the purpose of the procedure for reviewing the acts of the contracting authority was to remedy it at a time when the error of the contracting authority could still be corrected, i.e. before the conclusion of the contract. According to the NSS, the moment of conclusion of the contract in the procurement procedure constitutes an objective obstacle to the substantive examination of the application by the ÚOHS (see paragraph 24 of NSS judgment No 10 As 219 / 2016-51 of 18.1.2018). The effectiveness of the means of protection, i.e. a review of the procedure of the contracting authority prior to the conclusion of a contract, according to the administrative courts, the Czech legislation ensures, by means of so-called blocking deadlines in conjunction with the obligation of the ÚOHS in justified cases, a preliminary measure, on a proposal from the supplier or ex officio, which would prohibit the conclusion of a contract (see paragraph 17 of NSS judgment No 249 / 2014-43 of 31.3.2015). In this sense, the FTC, in the procedure for the application for review of the acts of the contracting authority, must ensure that it is decided in substance at a stage where the infringement of the contracting authority may still be ruled out; that obligation can only be fulfilled by issuing a decision pursuant to § 263 to 265 of the ZVZZ before the expiry of the blocking period. According to the Administrative Courts of the ÚOHS, the possible expiry of the blocking period must be avoided by all legal means, in particular by ensuring that the administrative authority decides quickly and smoothly and, where appropriate, by issuing interim measures, even on its own motion (see paragraph 45 of NSS No 10 As 219 / 2016-51).
68. The power to review the procedure of the contracting authority within the meaning of the review directive shall be distributed between the Authority and the civil courts. The Authority shall have the power to decide in the review procedure on the review of the acts of the contracting authority before the conclusion of the contract, as well as in the procedure on the proposal to impose a ban on the performance of the contract after the conclusion of the contract. Civil courts shall decide on compensation for damage caused by a breach of the obligations of the contracting authority in the award of the contract. The civil courts also have the power to examine whether the obligations of the contracting authority under Act No. 134 / 2016 Coll., as amended, have been infringed (see paragraph 18 of NSS judgment No. 4 As 249 / 2014-43).
General considerations: right to judicial and other legal protection, right to a substantive decision and prohibition of the exclusion of judicial review
69. As can be seen from the above summary of the legal provisions, the contested Section 257 (j) of the CCI imposes an obligation to suspend the procedure for the application for a review of the procedure of the contracting authority before the conclusion of the contract in the event of the conclusion of a contract for the performance of the subject matter of the contract under review. It follows from the appellant's argument that it sees the unconstitutional nature of the contested provision that its application results in infringement of the right of the parties to review proceedings to judicial and other legal protection.
70. Right to judicial and other legal protection under Article 36 (1) The Charter guarantees everyone that they can seek "established procedure 'in a court or other body of their right, whereby" [p] refusal and details are governed by law' (Article 36 (4) of the Charter). The tentative judicial protection is not the only way an individual can obtain the protection of his or her subjective rights. Different forms of other legal protection may be provided for in the legal system, which, although not accompanied by the same guarantees of independence and impartiality as in the courts, are generally effective and sufficient in practice; all administrative or other proceedings brought before a public authority other than a court are included. The legislature has wide scope for finding a solution, in view of the specific legal relationship, to achieve effective protection of the rights of the required quality [see point 42 of the sp. zn.
71. It is precisely the appropriate quality of the available protection of rights that is essential to the fulfilment of the fundamental right to judicial and other legal protection. It aims to ensure the protection of rights which are not theoretical or illusory but are practical and effective (see the judgment of the Grand Chamber of the ECHR of 12.2.2004 in Perez v France, No 47287 / 99, § 80). In order for the right to judicial and other legal protection to be effective, an individual in a democratic rule of law must have a clear and genuine opportunity to challenge an act which affects his or her subjective rights (see, for example, the ECHR judgment of 11 September 2020 in the case of Kandarakis v Greece, No 48345 / 12, 48348 / 12 and 67463 / 12, § 46). It follows from the ECHR case-law that the right to judicial and other legal protection is not exhausted simply by submitting the case to the competent authority; the right to judicial and other legal protection does not only include the right to initiate proceedings aimed at protecting the subjective right of the individual, but also the right to a substantive decision of the case, or a substantive assessment of the case (see the judgment of the Grand Chamber of the ESLP of 29.11.2016 in case 1605 / 14, Section 36, or of 9.1.2004 in case Aćimovic against Croatia, Case 61237 / 00, Section 42).
72. However, the right to judicial and other legal protection involving the right to a substantive decision is not absolute and may be subject to legitimate legal restrictions. None of them must be disproportionate and not distort the substance of the protected fundamental right (cf. Judgment of the Grand Chamber of the ECHR of 23 June 2016 in Baka v Hungary, No 20261 / 12, § 120). From the point of view of the protection of fundamental rights and freedoms, it is necessary that the individual conditions under which protection can be sought should pursue and be proportionate to the legitimate objective [see point 27 of the Opinion of the plenary of 28 November 2017 (ST 45 / 87 SbNU 905; 460 / 2017 Coll.)].
73. Article 36 (2) The Charter may be applied to the court to examine the lawfulness of such a decision, unless otherwise provided for in the law, who claim to have been shortened on his rights by a decision of a public authority. Article 36 (2) The Charter in this sense constitutes a general guarantee of judicial review of decisions of public authorities, but also provides the legislator with the scope to rule out judicial review of the lawfulness of decisions of a public authority (so-called exclusion of judicial review). However, even in the form of a law, it is not possible to rule out the review of the decision on fundamental rights and freedoms under the Charter, which is a manifestation of Article 4 of the Constitution, according to which fundamental rights and freedoms are under the protection of judicial authority [cf. The prohibition in question on the exclusion from judicial review applies only to cases where it must be a specific fundamental right and, at the same time, the decision of the public authority of a particular fundamental right must actually apply [see point 63 of the decision of the sp. zn.
74. At the same time, the prohibition of the exclusion of judicial review must be seen more widely from the perspective of the ECHR Convention and case law. In its view, the judicial review cannot be ruled out in respect of cases falling within the criminal or civil branch of Article 6 (1) of the Convention (see, for example, the judgment of the Grand Chamber of the ECHR of 14 December 2006 in the Markovic case and Others v Italy, No 1398 / 03, § 98). If legal protection is first carried out in these cases with a judicial body other than the judicial protection of rights within the meaning of Article 36 (1) of the Charter, it would be necessary to ensure its judicial review, even if, in theory, the fundamental rights and freedoms under the Charter (see KOPA, M. In: HUSSEINI, F., BARTON, M., KOKESH, M., KOPA, M. et al., Charter of Fundamental Rights and Freedoms. Praha: C. H. Beck, 2021, p. 1044).
Review of the Constitution § 257 (j) ZVZZ
75. In the light of the general considerations summarised above, the Constitutional Court must consider whether the contested obligation of the ÚOHS to suspend the procedure for reviewing the acts of the contracting authority leads to a limitation of the right of the appellants to judicial and other legal protection within the meaning of Article 36 (1) of the Charter. First of all, under the current rules, there is no subjective right for tenderers to obtain a contract in the procurement procedure. Public procurement is a civil contractual process which does not constitute a exercise of public authority; However, it is modified by specific provisions binding on contracting authorities and other bodies. Public procurement candidates shall have the right, in accordance with Article 6 (2) of the ZVZZ, to be treated in a straight and non-discriminatory manner by the contracting authority in the procurement procedure. In this respect, the fundamental right of applicants to judicial and other legal protection also affects the procedure for the application for review of the procedure of the contracting authority pursuant to Act No. 134 / 2016 Coll., as amended, since the ÚOHS constitutes another body for which the tenderers can claim effective protection of their right to equal treatment by the contracting authority in the award of the contract. Therefore, the tenderers of a procurement contract are subject to the fundamental right provided for in Article 36 (1) of the Charter in order to be able to claim their rights in a court or other authority in a specified manner.
76. At the same time, the judicial review of the procedure of the contracting authority cannot be ruled out absolutely as it follows from the case-law of the European Court of Human Rights that the procurement procedure falls within the civil branch of the constitutionally guaranteed procedural rights under Article 6 (1) of the Convention (see the judgment of the ECHR in the case of Mirovni Institut v Slovenia, § 105).
77. The constitutionality of the contested provision should therefore be assessed from the perspective of the right to judicial and other legal protection, since the procedure for the application for review of the acts of the contracting authority falls within the scope of Article 36 (1) of the Charter and Article 6 (1) of the Convention. The Constitutional Court further concluded that the obligation of the ÚOHS to suspend the review procedure in the event of the conclusion of a contract for the subject-matter of a contract constituted a clear restriction on the right of the parties to judicial and other legal protection involving the right to a substantive decision, as the competent authority does not have the possibility to evaluate the procedure of the contracting authority in the procurement procedure in a material way in the case of a procedural decision. Where the EOHS withdraws a review of the procedure of the contracting authority where a contract is concluded, the subsequent judicial review of the decision of the EOHS shall be limited by the administrative courts to the question of the legality of the termination of the procedure; Therefore, in accordance with the procedure of the contracting authority with Act No. 134 / 2016 Coll., as amended, the administrative courts cannot deal in substance. The termination of the procedure constitutes a restriction of access to a de facto judicial review of the procedure of the contracting authority in the procurement procedure, which means, at the same time, a restriction on the possibility of tenderers seeking judicial protection of their right to equal and non-discriminatory treatment by the contracting authority. Accordingly, the contested provision constitutes a restriction on the fundamental right of the parties to judicial and other legal protection under Article 36 (1) of the Charter and Article 6 (1) of the Convention.
78. However, in the present case, it is not a judicial exclusion within the meaning of Article 36 (2) of the Charter (as the appellant contends), since the very procedural decision of the ÚOHS is still revisable in the administrative justice system by the traditional way of action against decisions of an administrative authority within the meaning of § 65 et seq. The contested obligation to suspend the review procedure limits participants' access to judicial review only in relation to the acts of the contracting authority in the procurement procedure which are intended to cause unequal treatment of tenderers. Access to a court within the meaning of Article 36 (2) of the Charter against the very decision of the ÚOHS shall not be restricted by law.
79. If it follows from the foregoing that the provisions of Paragraph 257 (j) of the ZVZZ contested limits the fundamental right of the parties to review proceedings to judicial and other legal protection, the Constitutional Court must also consider whether such a restriction pursues a legitimate objective. The legitimate objectives of the Institute for the termination of the review procedure cannot be regarded as speeding up or streamlining the procurement procedure. The termination of the review procedure is merely a consequence of legal action - the conclusion of a contract for the subject matter of a contract. However, the legal objective must be sought in the sense of the review procedure before the conclusion of the contract. If the purpose of this procedure is to review the acts of the contracting authority before the conclusion of the contract for the subject-matter of the contract and, where appropriate, to impose corrective measures, it is clear that the conclusion of the review procedure at this stage becomes irrelevant. The institute of termination of proceedings is designed to ensure that the review procedure is rationalised in such a way that the proceedings before the ÚOHS and, where appropriate, the administrative courts do not take place after it is no longer possible to fulfil its purpose. In other words, the limitation of the right to judicial and other legal protection pursues the objective of ensuring the effectiveness of the decision at the stage prior to the conclusion of the contract for the subject-matter of the contract - such an objective is legitimate.
80. Finally, it is necessary to assess whether the restriction of the right to judicial and other legal protection in question by the institute to terminate the review procedure is appropriate to that legitimate objective. The Constitutional Court concluded in this respect that this is the case.
81. Paragraph 257 (j) of the SAA does not restrict the right of the parties to review proceedings to judicial and other legal protection absolutely. The review procedure shall be terminated only if the contract for the subject-matter of the contract is concluded before a substantive decision is taken by the Authority regarding the review of the procedure by the contracting authority. The Act No. 134 / 2016 Coll., as amended, contains several "fuses' to ensure that a substantive decision is made - in particular, the modification of the so-called block deadlines. If the OOHS does not decide on the review within the relevant block period, it shall have the competence (not the obligation) to issue an interim measure prohibiting the contracting authority from concluding the contract, thereby ensuring that the review procedure is properly completed.
82. The appellant submits that the above legal safeguards are not sufficient because the contracting authority may decide without further delay to break or conclude the contract, thereby effectively avoiding a substantive review of its procedure. By analogy, the appellant contends that such safeguards do not prevent arbitrary action by the ÚOHS, whose failure to act may lead to the conclusion of a contract for the subject-matter of a contract. The Constitutional Court does not agree with these arguments of the appellant. The contracting authorities shall be bound by law in their procedure for concluding the contract within the running block period or in spite of the prohibition laid down by the provisional measure. If the contracting authority concludes without further contract within the running block period or in contravention of the interim measure, the ÚOHS shall, pursuant to Article 264 (1) of the ZVZZ, be obliged in principle to impose on the contracting authority a prohibition on the performance of a contract which is invalid from the outset. In this way, Act No. 134 / 2016 Coll., as amended, ensures that the contract concluded by the contracting authority is not effective within the running block period or in contravention of the envisaged provisional measure.
83. The Act generally provides the EOHS with specific means by which it can reach a substantive decision in the review procedure and thus achieve effective protection of the parties to the present proceedings. The OOHS may prevent the expiry of the blocking period without the issuing of a substantive decision either by issuing a timely decision within the blocking period or by issuing an interim measure prohibiting the contracting authority from concluding a contract, including on its own motion. The Constitutional Court points out that the issue of an interim measure prohibiting the conclusion of a contract cannot be seen as an absolute obligation on the ÚOHS. It is possible to imagine cases in which the interests of the contracting authority for the immediate conclusion of a contract would legitimately outweigh the right of the parties to take a decision in a formality at the stage prior to the conclusion of the contract (e.g. the acute need for the purchase of medicines, etc.). Such cases in which the OHS either does not take a substantive decision within the blocking period or does not issue appropriate interim measures will be exceptional; but they cannot be completely excluded.
84. Where there are cases in which the legitimate interests of the contracting authority for the conclusion of a contract might outweigh the right of the parties to complete the review procedure, the Authority's possibility to consider the issue of an interim measure prohibiting the conclusion of a contract as a disproportionate competence to enable its arbitrary conduct. On the other hand, this possibility must be seen as a legal authorisation enabling the ÚOHS to consider in individual cases whether the right to judicial and other legal protection of the parties to the review proceedings outweighs the interests of the contracting authority to conclude a contract. In the absence of that competence, the ÚOHS would, moreover, be challenged by Article 257 (1) of the Treaty. j) ZVZZ effectively emptied - the contract could never have been concluded by the contracting authority before the review procedure had been terminated.
85. The question of whether the IOHS will consider conflicting interests correctly on a case-by-case basis is the application of the relevant provisions in specific cases. If the OHS considers the conflicting interests not to be erroneously and meritorious before the conclusion of the contract, its procedure may constitute an maladministration for which the State is responsible (cf. Article 36 (3) of the Charter). However, the mere possibility that the ÚOHS will not use the relevant legal safeguards in such a way that a substantive decision is taken on the matter cannot be considered to be disproportionate to the limitation of the fundamental right to judicial and other legal protection in general, since in exceptional cases such a procedure may be legitimate.
86. Finally, from the point of view of the proportionality of the Institute's termination of the review procedure, it is essential that even the parties to the terminated review procedure do not fully close the way to a substantive review of the procedure of the contracting authority in the award of the contract by the termination of the review procedure. As explained above, unsuccessful tenderers may claim damages in civil proceedings before civil courts against the contracting authority. In the context of examining the responsibility of the contracting authority, the civil courts shall examine the procedure of the contracting authority towards the unsuccessful tenderer, including whether the contracting authority treated the unsuccessful tenderer in a straight and non-discriminatory manner.
87. Since there is no subjective right of tenderers to conclude contracts for the subject-matter of a contract, it is appropriate from the point of view of the right to judicial and other legal protection that the form of effective protection against infringements of the right to equal treatment is different at different stages of the procurement procedure. At the stage prior to the conclusion of the contract, this protection is the protection measure (cancellation of the procurement procedure or individual act of the contracting authority), and at the stage after the conclusion of the contract, the means of protection is the possibility of seeking compensation from the State under a special law. The requirement of a fundamental right to judicial and other legal protection does not imply the specific form of protection of the law and, since Act No 134 / 2016 Coll., as amended, contains legal means that, except in the case of exceptions, a decision should be made in the case of review proceedings, the institute cannot be considered to be disproportionate.
88. It follows from the above that the contested legal obligation to terminate the review procedure where a contract for the subject-matter of a contract is concluded is generally proportionate to the legitimate objective pursued. The Constitutional Court therefore concludes that the contested § 257 (j) of the ZVZZ is in line with the constitutional order.
Conclusion
89. For all the above reasons, the Constitutional Court concluded that the contested § 257 (j) of the ZVZZ was in accordance with the constitutional order and rejected the application for its annulment pursuant to § 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Judges Josef Fiala, Vladimir Sládeček and Radovan Sukánek took a different position to justify the decision.
(1) Administrative proceedings conducted under S0406 / 2017 OHTS / VZ.
2) Administrative proceedings conducted under S0429 / 2017 / VZ.
3) Decision No OHS No OHTS-S0406 / 2017 / VZ-34610 / 2017 / 521 / OPi of 23.11.2017.
4) ÚOHS Decision No. ÚOHS-S0406,0429,0504 / 2017,0016 / 2018 / VZ-13640 / 2018 / 521 / Opi of 9.5.2018.
5) Decision No ÚOSS-R0093 / 2018 / VZ- 24506 / 2018 / 320 / HBA, HSc, JSu of 23.8.2018.
6) ÚOHS Decision No. ÚOHS-S0406,0429,0504 / 2017,0016,0092 / 2018 / VZ-27589 / 2018 / 521 / Opi of 20 September 2018.
7) Administrative proceedings originally carried out under the SPR ÚOSS-S0016 / 2018 / VZ.
8) Decision No ÚOSS-RO163 / 2018 / VZ-36407 / 2018 / 322 / JS of 14 December 2018.
9) Decision No OSS-S0386 / 2018 / VH-36739 / 2018 / 521 / OPi of 10.12.2018.
10) Decision No OHS-R0218 / 2018 / VZ- 05542 / 2019 / 322 / JS of 25.2.2019.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no. 484 / 2021 Coll., on the application for annulment of § 257 (j) of Act No. 134 / 2016 Coll., on Public Procurement |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 17.12.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Commercial law
Commercial liabilities
The regulation text is for informational purposes only.
Comments 0