The draft law on the awarding of public contracts was passed by the Chamber of Deputies in its third reading. Although a number of corrections can be expected in the Senate, there is no doubt that whatever form it is adopted, it will contain a number of provisions that will rightly become the target of - often critical - discussions in professional circles.
One of the novelties that entered the draft law during the adoption of the draft law in the Chamber of Deputies (including on the basis of an amendment proposed by the so-called guarantee committee) is the provision of Section 259. According to this provision, the following should apply:
1. For the submission of an initiative to initiate administrative proceedings ex officio, the Office shall collect a fee of CZK 10 from the person who submitted the initiative for each public contract in relation to the awarding of which a misconduct is stated in the initiative.
2. If several persons filed the petition together, the fee according to paragraph 1 will be collected only once.
3. The fee is payable upon submission of the initiative to the Office's account.
4. If the fee has not been paid within the deadline according to paragraph 3, the initiative will not be processed.
5. The fee is non-refundable.
6. Exemption from the fee or extension of the deadline for payment of the fee is not admissible.
7. The Administrative Fees Act does not apply.
The establishment of this institute is justified by the effort of the legislator to eliminate the number of so-called bullying initiatives submitted to the Office for the Protection of Economic Competition, i.e. such submissions, with which their author does not primarily pursue the protection of his rights, but rather aims at harming the contracting authority or a participant in the procurement procedure. However positive the legislator's efforts to eliminate these bullying submissions may be, I believe that the method chosen by the legislator is extremely problematic.
Following the incorporation of this institute into the proposed law, comments appear in the media (see, for example, the statement of Karla Šlechtová, Minister for Regional Development in the article We did not write a law against corruption, Hospodářské noviny 11.3.2016, p. 15), according to which the introduction of this institute is correct in principle, only the amount of the fee for submitting an initiative in the amount of CZK 10 is problematic.
I am of the exact opposite opinion, because I do not see the problem in the amount of the fee. It can be assumed that the person submitting the initiative will in most cases be sufficiently financially equipped to bear the fee of CZK 10 without any problems. In my opinion, the initiatives of "ordinary people from the street" cannot be expected to be too numerous in this context. I see a fundamental problem in the fact that, if the given provision is part of the approved wording of the Public Procurement Act, there will be a fundamental distortion of the principle of officialdom, which is applied in the activities of public administration bodies, among which the Office for the Protection of Economic Competition belongs. According to this principle, the proceedings (on violation of the law, in the case under consideration, proceedings on the review of the legality of the contracting authority's actions) are initiated and its subject determined by the administrative authority itself ex officio, independently of the external initiatives of the parties to the proceedings.(1) In connection with the principle of legality, the Office for the Protection of Economic Competition is thus obliged to examine ex officio all facts that may lead to the conclusion that the contracting authority has violated the law by its act, of which the Office becomes aware in the exercise of its powers, regardless of whether this knowledge obtained by the Office completely autonomously, for example, when handling objections of participants in tendering procedures, or from any of its other activities, or whether the Office was alerted to a possible violation of the law in the form of an initiative from a third party. Thus, if the Office discovers facts indicating that the act of the contracting authority may not necessarily be in accordance with the law, it is obliged to check such facts ex officio, regardless of whether or not someone invited it to do so. Assuming the validity of what has just been stated, it must apply that such proceedings must be initiated and continued by an administrative body whose activity is governed by the principle of officialdom, without the possible author of the initiative - the whistleblower - being obliged to pay anything to the given administrative body.
The above-mentioned provision of the proposed law on the award of public contracts completely negates the just-described principle of free exercise of official authority, while it should now apply that the Office will only be able to deal with initiatives to initiate proceedings ex officio if, with the submission of such an initiative, the person who submitted the initiative , will pay the amount of CZK 10. Otherwise, the Office will be obliged to postpone the initiative and not deal with it further, even if it learns from the initiative that the initiative appears to be highly likely to be justified. De facto, the Office will thus be forced to "forget" that it learned about the facts stated in the complaint and will most likely never be authorized to review the contractor's procedure in question, as it will not be possible to distinguish whether it learned about the contractor's misconduct from an unauthorized complaint or from another own activity. Failure to pay the fee for the initiative will effectively prevent the review of the procedure by the contracting authority, which is in direct contradiction to the principle of officialdom, regardless of the misuse of such a procedure by erring contracting authorities.
In my opinion, the combination of the notifier's obligation to pay a fee for submitting an initiative is problematic for at least one more reason. It is appropriate to think about the (legal and economic) nature of the fee that the notifier submitting the initiative to the Office should pay. The definition of the concept of fee in the legal system of the Czech Republic is dealt with in detail by Radim Boháč in his article "The concept of fee in the legal system of the Czech Republic" (2) The author of the article provides an interpretation of the term fee from a legal and economic point of view and refers to the definitions of this term contained in relevant publications dealing with the theory of financial law or public finance. From these definitions, it can be concluded that the fee must be understood an involuntary purposeful payment established by law for the provision of a service by a public authority to the person making the payment. All authors agree that the attribute of the fee is that, in return for its payment, the person who made the payment receives a certain legally guaranteed performance of the public authority, which is typically (in the case of administrative fees) the right of the taxpayer to have the recipient of the fee carry out some administrative proceedings in which the taxpayer is a party. In the case of a fee, the "something for something" principle must apply, or "I pay you to act and decide my rights and obligations". This principle of direct equivalence distinguishes fees from taxes. For the definition of tax, it is possible to start, for example, from the financial law textbook by the authors of the Faculty of Law of Charles University in Prague, who define tax as a mandatory payment that the state establishes by law to raise income for the payment of societal needs, i.e. for public budgets, without providing equivalent consideration to taxed entities. (3) In the case of taxes, the principle of direct assignability of the equivalent obtained by the taxpayer against the tax payment made by him does not apply, which is a fundamental difference between a tax and a fee.
Knowing the above-mentioned difference between taxes and fees, let's ask ourselves what consideration will be obtained by the person who turns to the Office for Protection with an initiative in accordance with the provisions of § 259 of the draft law on the awarding of public contracts compared to the fee of CZK 10 paid by him. The answer to this question is provided by the provisions of § 000 of the Administrative Code, according to which: the administrative authority is obliged to accept initiatives in order to initiate proceedings ex officio. If the person who filed the initiative requests it, the administrative authority is obliged to inform him within 30 days from the day on which it received the initiative that it has initiated the procedure, or that it has not found reasons to initiate the procedure ex officio, or that it has forwarded the initiative to the competent administrative authority . It is obvious that the person who filed a petition with the administrative body does not get anything from the administrative body except for the possibility of receiving information about how his petition was handled. Such a whistleblower does not have any rights that are granted by law to those who are parties to administrative proceedings. Such a whistleblower does not, for example, have the right to inspect the files, get acquainted with the results of the activity of the administrative body during the examination of his initiative, does not have the right to make any proposals for taking evidence, issuing a decision on the matter or taking other actions by the administrative body on which the administrative body would have to make an authoritative decision , does not have the right to file any appeal against the way the administrative body handled his initiative. In return for the payment of the fee, the person submitting the initiative in accordance with the provisions of § 259 of the draft law on the awarding of public contracts will not receive anything. The fee is not a fee, but rather a hidden tax on the right to submit proposals to the administrative body. Something completely incomprehensible to me.
Perhaps just for the sake of completeness, let's mention another problem that is connected with the given institute. According to the proposed provision of § 259 paragraph 6 of the draft law on the award of public contracts, according to which it is not possible to be exempted from the fee for submitting an initiative to the Office or to extend the deadline for its payment. This rule will mean denying the right of access to the administrative body, among other things, to persons who, due to their financial circumstances, cannot afford to pay CZK 10 for wanting to submit a petition to the Office for the assessment of possible illegality in the public procurement process. I dare to say that, at least with this provision, the legislator is stepping on the thin ice of a possible violation of the right to a fair trial expressed in Article 000 of the Charter of Fundamental Rights and Freedoms.
Above, I tried to point out the problematic aspects of the provisions of Section 259 of the draft law on public procurement. I am really curious whether the discussed provision will be part of the final version of the law on the awarding of public contracts. If so (which can be assumed with regard to its origin in the guarantee committee of the Chamber of Deputies), I believe that sooner or later this provision will necessarily be subject to review by the general courts of the Czech Republic, and I dare to say that sooner or later this provision will also deal with the Constitutional Court of the Czech Republic.
Source: epravo.cz
The team of the Vych & Partners, s.r.o. law office
[1] Compare Hendrych, D. et al.: Administrative law - General part, 3rd edition, CH Beck 1998, p. 194
[2] Boháč, R.: The concept of fee in the legal system of the Czech Republic, Faculty of Law of Charles University - text prepared within the program "PRVOUK - Public law in the context of Europeanization and globalization", 2012
[3] Bakeš, M., Karfíková, M., Kotáb, P., Marková, H., Financial Law, 5th updated edition, Prague, CH Beck, 2009 p. ISBN 978-80-7400-801-6, p. 154
