The Office for the Protection of Competition has long debated the procedure in cases which are terminated based on a lack of merits where no interim measures have been granted. When it comes to granting interim relief, the Office’s decision-making reflects several legal considerations. First, a 10-day period is provided for decisions on applications for interim measures; this follows from Art. 61 para. 2 of the Administrative Procedure Code (in contrast, the European regulation applies the stricter wording “in the shortest possible time”). Second, a certain amount of discretion is allowed with respect to decision-making about interim measures (the rule holds that the relief must always be granted if there are objective and well-justified grounds for doing so). Third, a statutory 45-day ban applies to the concluding of a contract under the Act on Public Procurement (in cases where administrative proceedings have been launched). Lastly, there is a deadline for issuing a decision on the merits under the Administrative Procedure Code and several other concerns. It is appropriate for supervisory bodies to take a pragmatic approach to issuing interim measures even in cases involving a decision on the merits.  In the context of a challenge to public tender proceedings, an interim measure is the only remedy which can be used to preserve the status quo, and thus, the Office for the Protection of Competition may use all its powers to remedy any unlawful proceedings. In this regard, it is always necessary to consider the potential threat of damages resulting from a failure to issue an interim measure and the resulting conclusion of contracts during the administrative proceedings. The Regional Court in Brno has already dealt several times with the question of the procedure for dismissing cases based on a lack of legal merits, but the case law remains uncertain. 

In an earlier judgment of April 17, 2014, Ref. No. 62 Af 110/2012, the Regional Court held that if a performance contract is concluded during the proceedings on an application, the Office must terminate those proceedings under Art.118 of Act No. 137/2006 Coll., on public procurement, as amended (because of the failure to meet the conditions for granting relief) and not under Art. 66 para. 1 letter g) of the Administrative Procedure Code. In addition, the Regional Court expressed its opinion about the content of the reasoning for a decision to discontinue the proceedings based on a “no-merits” application, finding that “ […] it is in line with good administration principles to mention along with the conditions whose absence makes granting relief impossible, the particular conditions for granting a remedial measure which were met.  This is all the more true […] if the failure to fulfil the terms of pending contract will occur during the administrative proceedings after the defendant [the Office for the Protection of Competition] does not grant interim relief to prohibit entry into the contract […]“ The court expressed the same opinion in judgment Ref. No. 62 Af 105/2013 dated December 4, 2014. […] 

This legal opinion, which the court has now stated several times, is of a fundamental importance to the parties to administrative proceedings, and it cannot be overlooked for several reasons. One of these is the possibility of claiming compensation; another comes from a prevention perspective and relates to stopping unlawful actions from arising in the future.  The exclusion of the option to claim private law damages based on the unlawful conduct of the contracting authority is a major procedural flaw. Thus, the above opinion of the Regional Court must be fully respected and in keeping with Art. 118, the supervisory body must proceed by highlighting the conditions for granting an interim measure which were not satisfied as well as the conditions which were met at the time of handing down its decision, i.e. irrespective of any breach of the Public Procurement Act.

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