Κατεύθυνση Άυλα Αγαθά και Ανταγωνισμός
Library of the School of Law

2021-02-07

2021

Argyri Ifigeneia

Αλεξάνδρα Μικρουλέα, Αναπληρώτρια Καθηγήτρια Νομικής Σχολής, ΕΚΠΑ.
Ευθυμία Κινινή, Επίκουρη Καθηγήτρια Νομικής Σχολής, ΕΚΠΑ.
Εμμανουήλ Μαστρομανώλης, Επίκουρος Καθηγητής Νομικής Σχολής, ΕΚΠΑ.

Ο αποκλεισμός από δημόσιους διαγωνισμούς ως έννομη συνέπεια της διευθέτησης διαφορών

Greek

Exclusion from public tenders as legal consequence of settlement procedure

The present aims to highlight the issue of the connection of Settlement Procedure before the Hellenic Competition Commission, which is regulated by article 25a of Law 3959/2011, on "Protection of Free Competition", with the reason for exclusion of economic operators from public tenders for reasons of distortion of competition and the "self-cleansing measures". This new issue came to the fore dynamically after the enactment of Law 4635/2019 (OGG A’ 167), which amended article 44 par. 3 of Law 3959/2011, as well as Law 4412/2016 (Public Procurement Law). The said article, in its pre-existing form, after its amendment by article 106 of Law 4389/2016 (OGG A’ 94), provided incentives to undertakings participated in anti – competitive agreements, to settle or to submit a leniency application. One of the significant incentives was the complete exemption from "other types of administrative sanctions" in case the company involved was subject to any of the above-mentioned procedures.
Hence, the wording of the said provision has caused serious difficulties in interpreting the scope of the notion "complete exemption from administrative sanctions" in the case of settled companies. The objective of the national legislator with the enforcement of article 235 of Law 4635/2019 was precisely the elimination of these interpretative difficulties in order to serve the public interest of the completion of public tenders and the smooth operation of the contracting sector in conditions of real and healthy competition. Thus, according to the explicit legislative provision of article 235 par. 2 of Law 4635/2019, the determination of the participation of the company in a horizontal cartel agreement does not establish a reason for exclusion from public tenders, in case the companies involved are subject to leniency and settlement procedures and make full payment and / or partial payment of the fine imposed. However, as the present paper will attempt to show, this effort by the national legislature does not appear to have been moved in the right direction.

Law and Legislation

Law of Competition

bid rigging, settlement procedure, leniency, self - cleanining measures, Law 4635/2019.

Yes

0

No

57

146

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https://pergamos.lib.uoa.gr/uoa/dl/object/2934710