Sdzba Eiropas Komisijai par Ministru kabineta 2012.gada 25.septembra sdes protokollmuma Nr.53 58. 8.

punkta neatbilstbu ES tiesbu aktiem. Sagatavoja:

COMPLAINT 1 TO THE COMMISSION OF THE EUROPEAN UNION CONCERNING FAILURE TO COMPLY WITH COMMUNITY LAW

1.

Surname and forename of complainant: Association Sabiedrba par atkltbu Delna (Latvian department of international anti-corruption organisation Transparency International) (hereinafter Delna) n/a n/a A.aka iela 49-4, Riga, LV-1011, Latvia Telephone: +371 67285585, +371 26788710 Fax: +371 67285584 E-mail: ti@delna.lv Purpose of the association is to facilitate formation of a democratic society, promoting information transparency and corruption prevention. Delna operates in the Republic of Latvia.

2. 3. 4. 5.

Where appropriate, represented by: Nationality: Address or Registered Office 2: Telephone/fax/e-mail address:

6.

Field and place(s) of activity: -

7.

Member State or public body alleged by the complainant not to have complied with Community law: Cabinet of Ministers of the Republic of Latvia The complaint is submitted about non-compliance of Clause 8 of Cabinet protocol-decision No 53 58. "Regarding informative notice about provision of further operation of technical equipment recording violations (photo radars)" from the meeting of 25 September 2012 (hereinafter Challenged Deed) with Article 14 of Directive 2004/18/EK of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of Fullest possible account of facts giving rise to complaint: 8.1.

8.

You are not obliged to use this form. You may also submit a complaint by ordinary letter, but it is in your interest to include as much relevant information as possible. You can send this form by ordinary mail to the following address: Commission of the European Communities (Attn: Secretary-General) Rue de la Loi 200, B-1049 Brussels BELGIUM You may also hand in the form at any of the Commission's representative offices in the Member States. The form is accessible on the European Union's Internet server (/eu_law/your_rights/your_rights_forms_en.htm). To be admissible, your complaint has to relate to an infringement of Community law by a Member State. 2 You should inform the Commission of any change of address and of any event likely to affect the handling of your complaint.

Sdzba Eiropas Komisijai par Ministru kabineta 2012.gada 25.septembra sdes protokollmuma Nr.53 58. 8.punkta neatbilstbu ES tiesbu aktiem. Sagatavoja:

public works contracts, public supply contracts and public service contracts (hereinafter Directive). 8.2. On 25 September 2012, in a meeting the Cabinet of Ministers reviewed the informative notice "On provision of further operation of technical equipment recording violations (photo radars)" taking into account that the State Police was planning to terminate the Procurement Contract concluded between the State Police and limited partnership "V-Traffic" on 20 June 2011. In this meeting, the Cabinet of Ministers asked the Ministry of the Interior to assess the offer of VITRONIC Dr.-Ing.Stein Bildverarbeitungssysteme GmbH to purchase 57 photo radars and determine the objectivity of their amount, if possible, compliance with the market value, as well as to find out other necessary measures until 20 November 2012 (Cl. 3 of the Challenged Deed). To perform the mentioned task, the Cabinet of Ministers asked the Ministry of the Interior to ask independent auditors to assess the Offer and perform market research (Cl. 4 of the Challenged Deed). Likewise the cabinet of Ministers asked the Ministry of the Interior to submit suggestions on further activities for revision not later than at the meeting of the Cabinet of Ministers on 27 November (Cl. 5 of the Challenged Deed). The Ministry of the Interior was asked to assess the option to enter a contract on operation of maximum 57 Photo Radars until 31 December 2012, at the latest (Cl. 6 of the Challenged Deed). Under Clause 8 of the Challenged Deed, the Cabinet of Ministers decided allowing non-application of the procurement procedure determined in the Public Procurement Law, to perform Clauses 3, 4, 5, and 6 of the Challenged Deed as well as to cover costs of legal fees and substantiated it by Section 3(3)2) of the Public Procurement Law (hereinafter PPL). Section 3(3)2) of the PPL states, "This Law shall not apply if its application could cause damage to protection of the substantial interests of the State. The Cabinet of Ministers decides regarding the protection of the substantial interests of the State in each specific case. Thus in essence by the Challenged Deed the Cabinet of Ministers decided that procedures of public procurement will not be applicable to procurement of the Photo Radars if supported.

8.3.

8.4.

8.5.

8.6.

9.

As far as possible, specify the provisions of Community law (treaties, regulations, directives, decisions, etc.) which the complainant considers to have been infringed by the Member State concerned: 9.1. Delna considers that this decision by the Cabinet of Ministers (in the interpretation of Section 3(3)2) of the PPL) does not comply with Article 14 of Directive 2004/18/EK of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (hereinafter Directive) . Title of this article is "Secret contracts and contracts requiring special security measures" and it states, "This Directive shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member
2

Sdzba Eiropas Komisijai par Ministru kabineta 2012.gada 25.septembra sdes protokollmuma Nr.53 58. 8.punkta neatbilstbu ES tiesbu aktiem. Sagatavoja:

State concerned, or when the protection of the essential interests of that Member State so requires." 9.1. The Cabinet of Ministers, having withdrawn from general principles of free competition fails to substantiate what security interests would be harmed if the procedures of public procurement were observed. Despite that, Delna considers that application of procedures of public procurement to procurement of Photo Radars would not harm the security interests of the State. Even if the Cabinet of Ministers considers that the target to be met is traffic security, it is not clear how this security would be decreased by the circumstance where the Photo Radars were bought in an open tender. Further, there are no grounds to foresee these exceptions on the basis of conditions of economic security. A measure causing expenses to the State alone does not make it a condition that may threaten economic security of the State. Expenses that may occur if a public procurement for the Photo Radars was organised should not be considered as threatening the economic security of the State. Likewise expenses that would occur to ensure traffic security by alternative means during the public procurement cannot be considered as threatening the economic security of the State. Thus the Cabinet of Ministers has allowed an excessively broad interpretation of Section 3(3)2) of the PPL, and has not justified it, thus it has violated Article 14 of the Directive. It should be noted that this is not the first case when the Cabinet of Ministers has applied the exception in Section 3(3)2) of the PPL to avoid open public procurement procedures. These, possibly, non-justified cases were: 9.2.1. 20.03.2007, Cabinet order No 156 " egarding reconstruction R of the Olympic Centre in Riga, Grostonas iela 6B, after the 3 summit of NATO countries and government leaders"; 9.2.2. 20.02.2008, Cabinet order No 79 " egarding construction of R 4 the National Library of Latvia ;

9.2.

9.2.3. 23.10.2009, Cabinet order No 724 "Regarding nonapplication of the Public Procurement Law to ensuring participation of Latvia at international exhibition "World Expo 2010" in Shanghai, People's Republic of China"5 9.2.4. 18.03.2010, Cabinet order No 154 " egarding plan of events R for 20th anniversary of declaration of independence of the 6 Republic of Latvia and the estimate of financing". The list, most likely, is not complete because the Chancellery of the State has
3

20.03.2007, Cabinet order No 156 "Regarding reconstruction of the Olympic Centre in Riga, Grostonas iela 6B, after the summit of NATO countries and government leaders" ("LV", 49 (3625), 22.03.2007.). 4 20.02.2008, Cabinet order No 79 "Regarding construction of the National Library of Latvia" ("LV", 29 (3813), 21.02.2008.), is available at http://likumi.lv/doc.php?id=171272 . By audit memo No 5.1-219/2009 of 14.01.2010 of the State Control of the Republic of Latvia, this Cabinet decision was found nonsubstantiated and failing to comply with the EU regulation in the field of public procurement, available at http://www.lrvk.gov.lv/upload/zinojums_J3B_14Jan2010.pdf. 5 23.10.2009, Cabinet order No 724 "Regarding non-application of the Public Procurement Law to ensuring participation of Latvia at international exhibition "World Expo 2010" in Shanghai, People's Republic of China http://www.likumi.lv/doc.php?id=199680 . 6 18.03.2010, Cabinet order No 154 "Regarding plan of events for 20th anniversary of declaration of independence of the Republic of Latvia and the estimate of financing" ("LV", 45 (4237), 19.03.2010.), available http://likumi.lv/doc.php?id=206793. 3

Sdzba Eiropas Komisijai par Ministru kabineta 2012.gada 25.septembra sdes protokollmuma Nr.53 58. 8.punkta neatbilstbu ES tiesbu aktiem. Sagatavoja:

publicly stated that in the period from January 2010 to September 2011, six cases were detected when the Cabinet of Ministers had allowed avoiding application of the PPL.7 Unfortunately, a private party cannot get information about this and other cases because the search engine in the Cabinet of Ministers page does not work properly, as well as often the status of limited access is granted not only to the text of Cabinet decisions but also to substantiation documents, even agendas of the Cabinet meetings. Additionally, no public access is granted to the list of information that the Cabinet of Ministers or the Chancellery of State grants this status. 9.3. Delna considers that these samples illustrate the systematic character of applying Section 3(3)2) of the PPL (avoiding procedures of the public procurement). This, in turn, shows that these cases most likely will occur again in future. These decisions that allow avoiding public procurement procedures threaten free competition and equal and fair attitude towards suppliers, as well as threatens efficient use of state funds. To decrease these risks, from the point of view of public interests, it would be necessary to continue revision of this application even if the Cabinet of Ministers revokes Clause 8 of the Challenged Deed before the Commission of the European Union makes a decision. To ensure the rule of law and correct further application of the Internal market regulations, it is significant that the European Commission assesses this issue on its merits, and in case of necessity starts infringement procedure against the Republic of Latvia.

9.4.

10.

Where appropriate, mention the involvement of a Community funding scheme (with references if possible) from which the Member State concerned benefits or stands to benefit, in relation to the facts giving rise to the complaint: n/a Details of any approaches already made to the Commission's services (if possible, attach copies of correspondence): n/a

11.

12.

Details of any approaches already made to other Community bodies or authorities (e.g. European Parliament Committee on Petitions, European Ombudsman). If possible, give the reference assigned to the complainant's approach by the body concerned: n/a Approaches already made to national authorities, whether central, regional or local (if possible, attach copies of correspondence): 13.1 Administrative approaches (e.g. complaint to the relevant national administrative
authorities, whether central, regional or local, and/or to a national or regional

13.

Corruption Prevention and Combating Bureau . Guidelines to eliminate corruption risks in application of exceptions determined in the Public Procurement Law. Riga, 2011. pp 22-23 http://www.knab.lv/uploads/free/knab_vadlinijas_korupcijas_riski_iepirkumu_iznemumos.pdf. 4

Sdzba Eiropas Komisijai par Ministru kabineta 2012.gada 25.septembra sdes protokollmuma Nr.53 58. 8.punkta neatbilstbu ES tiesbu aktiem. Sagatavoja:

ombudsman):

As the Cabinet of Ministers has imposed the status of limited access to protocol-decision No 53 58. "Regarding informative notice about provision of further operation of technical equipment recording violations (photo radars)" of the Cabinet meeting of 25 September 2012; on 16 October 2012 Delna asked the State Chancellery and the Ministry of the Interior to issue the decision text to inspect the decision to allow purchase of photo radars without applying the PPL. In an edited form, it was received on 18 October and confirmed that the Cabinet of Ministers has allowed non-application of the PPL in this case. On 29 October 2012, Delna sent the State Chancellery an information request with No 4.4./102, asking to inform about all cases from 1 May 2006 [when the Public Procurement Law came into force] until this moment, where the Cabinet of Ministers allowed not to apply the PPL on the grounds of Section 3(3)2) of the PPL. The reply has not yet been received.

13.2 Recourse to national courts or other procedures (e.g. arbitration or conciliation). (State whether there has already been a decision or award and attach a copy if appropriate): An application is prepared for Satversmes tiesa (Constitutional Court) regarding revocation of Clause 8 of the Challenged Deed. The application is not yet submitted to the court because signatures of Saeima (Parliament) deputies are collected (20 in total), who are entitled to address the Constitutional Court with this application.

14.

Specify any documents or evidence which may be submitted in support of the complaint, including the national measures concerned (attach copies): protocol-decision No 53 58. "Regarding informative notice about provision of further operation of technical equipment recording violations (photo radars)" of the Cabinet meeting of 25 September 2012 (copy with unofficial translation to English).

15.

Confidentiality (tick one box) 8:

"I authorise the Commission to disclose my identity in its contacts with the authorities of the Member State against which the complaint is made." "I request the Commission not to disclose my identity in its contacts with the authorities of the Member State against which the complaint is made."

Please note that the disclosure of your identity by the Commission's services may, in some cases, be indispensable to the handling of the complaint.

Sdzba Eiropas Komisijai par Ministru kabineta 2012.gada 25.septembra sdes protokollmuma Nr.53 58. 8.punkta neatbilstbu ES tiesbu aktiem. Sagatavoja:

16.

Place, date and signature of complainant/representative: Riga, 6 November 2012 Association Sabiedrba par atkltbu Delna Director Kristaps Petermanis

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