Speciality Public Law
Library of the School of Law

2023-01-12

2023

Patsoudi Georgia

Καθηγητής κ. Κωνσταντίνος Γιαννακόπουλος
Καθηγητής κ. Βασίλειος Κονδύλης
Αν. Καθηγήτρια κ. Παρασκευή Μουζουράκη

Σώρευση αίτησης αναστολής εκτέλεσης και αίτησης ακύρωσης στο ίδιο δικόγραφο σύμφωνα με το νέο άρθρο 372 του Ν. 4412/2016

Greek

Merger of the application for interim measures and the application for annulment in the same application under the new article 372 of Law 4412/2016

Article 138 of Law 4782/2021, that amended article 372 of Law 4412/2016, fundamentally reformed the legal protection system at the pre-contractual stage of public procurement procedures. The novelty of the new regime lies in the merger of the request for interim judicial protection and the request for final annulment in a single application. This single remedy intends to resolve definitively the dispute before the competent court, within approximately three months. The provisional order (“prosorini diatagi”), issued within a very short period and containing a brief statement of reasons, is replacing the application for interim measures of the previous regime.
This legislative choice seems to have been influenced by the recent developments in the case-law of the Court of Justice of the European Union, according to which a candidate has the right to bring a proceeding before the court as long as its dismissal from the tender procedure has not acquired the authority of res judicata. Therefore, the disputes must be resolved within a short time to deprive the candidate of the possibility of maliciously delaying the signing of the public contract.
This thesis presents the provisions of the new Article 138 of Law 4782/2021 and the examination of whether the newly introduced rule is compatible with EU and national law and can achieve the objectives that the legislator sought. In the meantime, the Chambers of the Council of State (CoE) have already issued four (contradictory) decisions, ruling on the compatibility of the new regulation with the EU rules and the Greek Constitution. The said four decisions are also presented in this thesis. The Chambers referred the issue to the Plenary Session of the CoE, whose judgment is awaited with great interest by all those involved in the public procurement procedures and especially by the legal professionals.

Law and Legislation

Public Law

public procurement, public tenders, Law 4412/2016, application for interim measures, application for annulment

No

0

No

41

71

https://pergamos.lib.uoa.gr/uoa/dl/object/3257202/file.pdf

https://pergamos.lib.uoa.gr/uoa/dl/object/3257202