What Sanctions can the Market Court Impose in a Public Procurement Matter

A petitioner must specify the sanctions it demands the Market Court to impose. The Market Court cannot handle a petition in which no demands have been made.

The Market Court can impose the following sanctions: revoke a decision of a contracting authority (wholly or partly), forbid the contracting entity from continuing an incorrect procedure, oblige the contracting authority to rectify its incorrect procedure, and order the contracting entity to pay a compensation payment. In addition, when the contract value exceeds the EU thresholds, the Market Court may declare an awarded contract void, shorten the term of a contract and/or order the contracting authority to pay a fine to the State.

The petitioner can demand for a compensatory payment when the repeal of a procurement decision is no longer possible, for example when the contract has been concluded. The granting of compensation payment requires that the petitioner establishes that it would have had an actual chance to win the contract had the procedure been correct.

As a public procurement matter exceeding national thresholds is pending at the Market Court, the Court can prohibit or suspend the implementation of a decision or otherwise order the award procedure to be suspended on an interim basis for the duration of the Market Court proceedings. In procurements exceeding EU thresholds the suspension is automatic, and the contracting authority does not have the right to implement its award decision during the Market Court proceedings. The Market Court may, however, through a motivated request from the contracting authority allow the conclusion of the contract. Both in procurements exceeding national and EU thresholds the Market Court can impose a conditional fine to enforce an interim order.

It is noteworthy that damages may not be imposed by the Market Court nor is the Market Court competent to consider claims for damages. Claims for damages shall be claimed from a general district court.