"The preventive audit of public contracts by the Supreme Court of Audit as an anticorruption guarantee" 1

Transcription

1 "The preventive audit of public contracts by the Supreme Court of Audit as an anticorruption guarantee" 1 Dr. Ioannis P. Karkalis Vice Commissioner General of the State, Office of the Commissioner General of the State, Greece Special Adviser in Anticorruption, Executive Office of the Director, European Public Law Organization 1. The Greek Supreme Audit Institution Competences The Greek Supreme Audit Institution is a supreme court established in The initial concept was modeled on the French Supreme Audit Institution. 3 Its main competence was the supervision of all public accounts. The Greek Constitution (of 1975/1986/2001) provides in the Second Chapter, which under the title "Organization and Jurisdiction of the Courts" refers to all Greek courts, for the Greek Supreme Court of Audit, called in Greek "Elegtkiko Synedrio". According to article 98 of the Constitution, the Supreme Court of Audit is competent for: a. The audit of public expenditures. b. The audit of public contracts of high financial value. c. The audit of public accounts. d. The provision of an expert opinion upon laws on pensions. 1 This is a work-in-progress. Any comments are welcome at: ikarkalis@eplo.eu 2 Decree of 27 September / 9 October Cour des comptes. The term Supreme Audit Institution is applicable to all external auditors of the States participating in the European Organization Supreme Audit Institutions and in the International Organization of Supreme Audit Institutions (EUROSAI, INTOSAI). 1

2 e. The presentation to the Parliament of an annual report on the annual statement and the balance sheet of the State. f. The trial of legal remedies on disputes arising from the audit of accounts and from pension grants. g. The trial of cases related to the liability of all kinds of public officials. According to paragraph 2 of article 98 of the Constitution all competencies of the Supreme Court of Audit are regulated and carried out as specified by law. In this framework, presidential decrees 774/1980 and 1225/1980 provide for all the necessary details for the materialization of the aforementioned competences Organizational structure The Greek Supreme Court of Audit is staffed by its Presidents, 8 Vice Presidents, 30 Judge Counselors, 44 Second - Rank Judges and 45 First - Rank Judges. In addition to its judges, the Court is staffed with 1078 judicial employees, among which more than 2/3 are auditors. Along with the abovementioned judges, an Office of the Commissioner General of the State cooperates with the Court as the financial prosecutor of the State. The Commissioner General of the State belongs also to the Judiciary, as well as the three Vice Commissioners of the State. The first is a judge of the same rank as the President of the Court, while the three Vice Commissioners of the State are equal in rank to the Judge Counselors, all being supreme judges of the Administrative Branch of Justice. 4 The Office of the Commissioner General of the State (a) participates as a non litigant party representing the public interest in all trials before the Supreme Court of Audit, (b) prosecutes in terms of asset recovery all public officials having an obligation of declaration of assets 4 In the Greek judicial system, there are two Judicial Branches; the Administrative Judicial Branch (Administrative Tribunals, Administrative Courts of Appeal, Supreme Administrative Court, Supreme Court of Audit) and the Civil & Criminal Judicial Branch (Civil & Criminal Tribunals, Civil & Criminal Courts of Appeal, Supreme Court of Cassation). All judicial functionaries (judges and prosecutors) come from the National School of the Judiciary. 2

3 that fail to prove the legality of their income and fortune, (c) prosecutes in terms of asset recovery all public officials that have caused financial damage to the State, (d) supervises all kinds of anticorruption authorities that audit public financial accounts, (e) refers to and consults the Minister of Justice on issues concerning the Supreme Court of Audit and the Office of the Commissioner General of the State and (f) cooperates with all European and international anticorruption agencies and organizations Judicial independence All judges of the Supreme Court of Audit, as well as of the Office of the Commissioner General of the State, are completely independent of the legislative and the executive power. According to the first Chapter of the fifth Section of the Constitution, under the title "The Judicial Power", they are regular 5 judges who are endowed with functional and personal independence. In this framework, their status is constitutionally guaranteed. In the discharge of their duties, they are subject only to the Constitution and the constitutionally compatible laws and they cannot be obliged - not even by their superior in rank judges - to comply with provisions that violate the Constitution. Judicial functionaries of the Supreme Court of Audit, like any judicial functionary of the Hellenic Republic, are appointed by presidential decrees and they derive from the National School of the Judiciary. The latter is a prestige public institution whose students obtain their capacity as such after graduate - and in some cases post graduate - legal studies, under the precondition that they have a certain age 6 and they take and pass written and oral examinations in two different stages. If a candidate of the School is aiming at one of the two supreme courts of the Administrative Branch of Justice (the Supreme Court of Audit or the Supreme Administrative Court), 7 where the direct nomination of judicial 5 In the sense that they occupy an existing before their nomination judicial post. 6 Not younger than 28 and not older than 40 years of age. 7 A nomination at the third supreme court (Supreme Court of Cassation for Civil and Criminal Justice) is possible only through progressive promotions starting from the nomination of the graduate of the 3

4 functionaries as First - Rank Judges is provided, the candidate has to stand out graduating with high distinction from the School. Only then, the distinguished candidate can be directly nominated at one of the two aforementioned courts. Judicial independence of all the judicial functionaries of the Supreme Court of Audit, as well as of judicial functionaries of the Office of the Commissioner General of the State, is strengthened by the provision that they are inspected only by their superior judicial functionaries and their dismissal is in principle prohibited, allowed only pursuant to a final court judgment resulting from a criminal conviction or a confirmed, as specified by law, grave disciplinary breach or illness or disability or professional incompetence. In all these cases, the Supreme Judicial Council of the Court, composed of members of the Plenum of the Court and of the Office, is competent to decide on the matter. The decision is not final, in the meaning that the judicial functionary to whom it refers has the right to appeal before the Plenum of the Court. Retirement is compulsory upon attainment of the age of sixty five years of age in principle, a limitation that can be prolonged for two years for judicial functionaries who reach the supreme rank 8 before the age of sixty five. Judicial promotions, assignments to posts, transfers and detachments are effected by a presidential decree and can be issued only after prior decision of the Supreme Judicial Council. Judicial functionaries left out of promotion or disagreeing with the decision made by the Supreme Judicial Council, as well as the Minister of Justice, have the right to bring the matter before the Plenum. The decision of the plenum on a matter referred to it, as well as any decision of the Supreme Judicial Council not appealed before the plenum, is considered final and binding. Only exception to the abovementioned rule of judicial promotions that have to be decided by the Supreme Judicial Council is introduced by the School as a judge or a prosecutor at a tribunal of the Civil & Criminal Branch and going through the ranks until the higher rank at a court of appeal of the same Branch. After that rank, the Supreme Judicial Council of Civil & Criminal Justice chooses a limited number of judicial functionaries for the Supreme Court of Cassation. 8 That is the ranks of Judge Counselor or Vice Commissioner General. 4

5 Constitution for the President, the Commissioner General of the State and the Vice Presidents. The aforementioned judicial functionaries are chosen by the Government. 9 However, their institutional privileges are mostly managerial and they do not have an impact on the dispensation of justice. Judicial functionaries are in principle prohibited from practicing any other profession. In order for this to be achieved without causing any obstruction to their personal and institutional capacity of rendering justice their remuneration is commensurate to their office under constitutional guarantee. The only exception to the abovementioned rule of non practice of any other profession is introduced for judicial functionaries who are elected members of the Academy, professors at a University, representatives of the Hellenic Republic at an international organization or teach at the National School of the Judiciary. Participation of judicial functionaries to the Government is prohibited by the Constitution as it is considered a classical case of conflict of interest. All judicial employees of the Court and of the Office have a special status. Their nomination is permanent 10 and their promotions, assignments to posts, transfers and detachments are decided only by the two competent first and second instance Judicial Councils of the Court, the decisions of which, if final, are binding for the judicial employees, as well as for the Administrative Power. Consequently, the Government has no authority on the status of judicial employees. 2. Corruption & Anticorruption 2.1. The anatomy of corruption. The principle of public interest prevailing over the private ones in any democratically organized coexistence in order to make such a coexistence 9 The Prime Minister and the Council of the Ministers. 10 This means that they occupy the position as long as it exists. An administrative position can be suppressed only by law. On the contrary, judicial functionaries are nominated for life, which means that they cannot be done away with, even if the position they occupy or the Court itself are suppressed by law. 5

6 feasible, is the logic basis of the conception of the most commonly accepted definition of corruption; that of defining corruption as the abuse of public office or entrusted power for private gain. In the framework of such a concept, it is accepted as a precondition of reason that public interest is not necessarily - or cannot obligatorily be - a summation of all private interests referring to a certain society. A semantic approach to the aforementioned definition brings out the sine qua non elements of corruption. Such a notional analysis is considered necessary, not only in terms of common scientific understanding, but also as a prerequisite for any legally estimated proposal for anticorruption measures. In the aforementioned framework, within the theoretical limitations of the above definition, corruption should comprise at least three necessary elements as preconditions of its existence: a) The corrupted, who obtains a public office or to whom public power is entrusted. b) The corruptor, who is making an offer of private gain to the corrupted. c) The private gain itself. One fourth element would be the abuse of the specific public office or of the entrusted public power. However, the sine qua non existence of such an element in order to conclude on the characterization of a transaction as corruption would be incorrect to the extent that not in all cases without exemption the corrupted acquire private gain in exchange of services that are illegal or contrary to existing rules. In many cases, the corrupted demand and get, or are offered and accept, private gain for an outcome that would occur even if no corrupted action had taken place. This is usually the case when the result pursued by the corruptor is going to supervene with certainty as an unavoidable consequence provided by legal rules or in the ordinary course of events, yet the corruptor lacks the information and consequently doesn't know it. In such a case, the claim of the corruptor is a legal one or a logically expected one. Nevertheless, a false impression of the applied legal framework (due to an oversight or for reasons of bureaucracy or lack of transparency in general), or of the events that constitute the plot of the case, are used by the corrupted in 6

7 order to obtain the private gain offered for a service that would be rendered anyway. The acceptance of such a remark on the aforementioned definition of corruption would alter it to a redefinition of "corruption being the use or the abuse of public office or entrusted power for private gain". Returning to the first of the abovementioned elements of the anatomy of the term (the obligatory appearance in a corrupted transaction of the corrupted), the following should be noted: The corrupted subject of a transaction, which as stated above can be either a legal or an illegal one, may be participating in any of the three state powers (administrative, legislative or judicial). Parliamentarians can be corrupted as well as judges and prosecutors, while civil servants can be corrupted also. Every person in acquisition of public office or entrusted with public power, permanently or temporarily, having been elected or nominated, with a decisive or with a consulting competence, wide, limited or inexistent discretion, can participate at a corrupted transaction playing the role of the corrupted. On the other hand and as far as the second element is concerned (the presence of a corruptor, who is making an offer of private gain to the corrupted), it must be underlined that this role can be attributed to a person, to a group of persons, to a - national or multinational - company or a group of companies, to a state or a group of states, to an nongovernmental organization, to an international organization, etc. Yet, it has to be underlined that in some of the above cases criminal responsibility of the corruptor does not - or cannot - exist or be established. A very good example of such a legal gap that was found to be existing in many countries is the case of bribery of foreign public officials in international transactions. The "Convention on combating bribery of foreign public officials in international business transactions", signed by the members states of the Organization for Economic Co-operation and Development countries in order to prevent foreign public officials 11 from 11 According to article 4 paragraph 1 (a) of the Convention, "a foreign public official is any person holding a legislative, administrative or judicial office of a foreign country, whether appointed or elected; any person exercising a public function for a foreign country including for a public agency or public enterprise; and any official or agent of a public international organization". 7

8 accepting bribes while transacting at the international level, proves that theoretical research and legislative national and international initiatives concerning anticorruption measures need to be in constant motion towards the localization of new areas of possible infringements and illegal activity. The Convention, which is binding for the United States of America as well, was agreed and forwarded for signing in the year 1997 by the aforementioned Organization s countries as soon as it was realized that specific actions committed by or involving foreign public officials in international transactions could not be criminally evaluated and punished as there was no relevant criminal provisions. It must be noted that in the united States of America there had been in force a relevant legal framework since the year 1977, known as the "Foreign Corrupt Practices Act". In reference to the third element in corruption's definition (private gain), it should be remarked that the term "gain" is broader and more general that the term "profit", which would probably focus on financial advantages. In this semantic framework, private gain can refer to any benefit related to the improvement of the status of the corrupted. It can be present or future, existsting or promised. However, the risk of a final future non attribution of the promised advantage, if accepted and taken by the corrupted, must be considered as not annulling the private gain in the abovementioned sense (as the third element of corruption). It is doubted if the avoidance of a negative consequence on the status of the corrupted, product of blackmail, can be accepted as private gain as well. This is the case, for example, of a public servant that is threatened by an politically influential economic operator, in case of non compliance with the latter's corruptive proposal to satisfy an illegal demand, with a transfer to a far away area of the State. Would it be corruption if the public servant accepted the non removal as a private advantage in exchange of the proposed corrupted behavior? Would our answer be the same if the private advantage was the evasion of hard work? A rather well estimated response to this theoretical, yet not so unrealistic and unusual example would be that corruption would exist only if the public servant's 8

9 power was used or abused for the offering to the corruptor of an incommensurate to the threat advantage. In any other case, it would simply be blackmail and it should be treated as such Typology of Anticorruption measures Fighting against corruption is a difficult task. It needs deep understanding of the phenomenon, its causes and its consequences, its social functioning at a given place and time. Holistic approach in a multidisciplinary way is indisputably necessary, yet holistic does not obligatorily mean that all scientific approaches should and can be used for all kinds of corruption. Research at a national and international level is crucially important. International cooperation must meet national action and common understanding must be added to the realization that there are great differences apart from basic similarities. There are rules and general guidelines, yet exemption to the rule becomes very often a new rule itself and this is a principle that has to be understood by the international community. Being engaged in anticorruption means that one has to be open to new ideas and methods since corruption is always inventing methods inspired by new ideas. At the same time, one has to remain stable to old notions that still apply until proven wrong. This is because in the area of anticorruption, acting fast and adjusting to new corruptive techniques is equally important to being persistent with old solutions to old problems, knowing that all corruption medicines need time in order to come up with an outcome. In this framework, anticorruption measures can be categorized in the following main categories connected to relevant criteria: a) Preventive (a priori) - Suppressive (a posteriori) measures; in relation to the time initiation of the anticorruption activity (before or after a specific important action). b) Subjective - Objective measures; in relation to the target they aim at. Based on the punitive model, the first category (subjective measures 9

10 model) aims at the corrupted or the corruptor (person, legal entity). The main and most characteristic type of such measures are the criminal provisions punishing specific types of considered as corrupted behavior. Disciplinary action falls into this category as well. The second approach (objective measures) argues that any intention of the entrusted with public power or public office subject is not important, and anticorruption should focus on the system used by the aforementioned subjects reviewing its capacity to rapidly and in time react to possible corruptive intrusions. c) Administrative - Legislative - Judicial measures; in relation to their origin and to the state power responsible either for their establishment or for their application. d) National - Supranational - International measures; depending on the institutions and the legal orders involved. d) Legal - Economic - Social - Communicational - Psychological - of any other scientific approach, measures; depending on the scientific field used to approach the elements of corruption (the corrupted, the corruptor, the public). In most cases, an anticorruption approach uses more than one of the anticorruption categories listed above. Whistle blowing, for example, is targeting the subject through an applied legal framework protecting the whistle blower. It produces tactical psychological effects targeting the public through communicational channels and this is its main advantage. Yet, in several occasions it reveals important corrupted transactions and it initiates criminal procedure against the persons involved. It can also be the reason for a legislative initiative, although such an effect is rather collateral and cannot be connected to one or more whistle blowing activities. 10

11 3. The audit of public contracts 3.1. Introductory remarks According to article 98 paragraph 1 of the Greek Constitution, the Supreme Court of Audit is competent for the preventive audit of public contracts. The theoretical anticorruption concept behind this competence is based on the approach that public contracts are in the core of the struggle of interest groups trying to redistribute the wealth of society in their favor offering in exchange the public works, goods or services that are demanded by the State. Public authorities 12 enter into contracts to construct public works and purchase goods and services. In Greece, there is a well defined legal framework concerning the procedure ought to be followed by all public authorities in order to award a public contract. The basis of the abovementioned procedure, which is legislatively established by the national and the European 13 Legislator in collaboration, is the acceptance of the Rule of Law as the touchstone of every administrative action in the sense that no such action is permitted unless explicitly provided by a compatible to the Constitution statute. A classic example of the application of the Rule of Law in the public contractual procedure, which distinguishes public from private contractual activity, comes from my teaching experience in Panteion University during a class of "Anticorruption & Ethics". In order to explain to my students, absolute beginners in administrative law and public contracts, I used to begin teaching by posing the following question: One beautiful noon, a lawyer in private practice on his way home from his office passes by the window of car dealership where he notices a very impressive and expensive sport car. Entering the car dealership to get some information he gets caught in a hard sell and he buys the car instantly. This is a legally correct from a 12 In Greece, the State is competent and responsible for all kinds of public works, good and services, apart from those that have been attributed to the Local Government Agencies, responsible for local affairs within the limits of a Municipality or a Prefecture and to legal persons of public law (e.g. hospitals) or of private law controlled by the State. 13 By the term European, in this case, is meant the legislative organs and procedure of the European Union. 11

12 procedural point of view purchase and it may happen in many others areas and aspects of everyday's private life. Would the answer be the same if the buyer was the Minister of Justice that on his way home had decided instantly to buy the expensive sport car on behalf of the State as a government car? The answer is quite simple and, as I found out many times later on in my teaching career, easy to remember and apply in many case studies, by my students. The Minister of Justice cannot use public money according his will and taste following the same procedure as in his private life. Public money is willed through the application of the ad hoc statutory rules and any public official has to abide by these rules in all aspects of public life and activity. The Rule of Law is a reflection and a direct consequence of Democracy in the sense that at a given place and time the ruling majority decides on how and where the taxpayers' money is allowed to be used. From that time on and until the voted statute is changed by another ruling majority, all public officials are bound to use public money only in the way, to the amount and for the goals that have been decided. In the aforementioned example, the Minister of Justice, having to abide by a set of rules obliging him to make such a decision in agreement with other competent ministers (e.g. the Minister of Finance), and then to begin an open and transparent public procedure, may be by publishing a Contract Notice of the State's intention to buy one or more new government cars, would never be legally able to buy a government car via the same procedure the above person follows in everyday s life Public contractual procedure The procedure by which public contracts concerning public works, supplies and services are awarded in Greece is regulated by the national and the European Union's statutes. 12

13 A Contracting Authority in order to award a public contract defines all the necessary technical specifications 14 of the public work, supply or service in a detailed manner by inference understood by all possible interested candidates. This is a task carried out by technocrats and it is entrusted to special departments of every Contracting Authority. Once this work is done, the Contracting Authority publishes a Contract Notice inviting bids by any interested tenderer. The Contract Notice is published at the Government Gazette 15 and at the Official Journal of the European Union 16 within a specific deadline depending on the type of the contractual procedure followed. The requirements demanded in both the Government Gazette and the Official Journal of the European Union must be identical for reasons of avoiding any possible prevention, restriction or distortion of competition. There are three main categories of public contractual procedures: a) The Open Procedure: All interested renderers may submit tenders. b) The Restricted Procedure: Only those renderers, invited by the Contracting Authority after their qualifications have been established, may submit renders. c) The Negotiated Procedure: The Contracting Authority consults the economic operators of its choice and negotiates the terms of the contract with them directly. 17 In the last case, no prior publication of a Contract Notice is needed. A modern variation of the third abovementioned procedure is the Competitive Dialogue; the Contracting Authority initiates a discussion with economic operators that are candidates for large infrastructure projects, if not able to define by itself technical, legal or financial issues. Regarding the first two cases, it has to be underlined that the less transparent a contractual procedure the 14 The technical specifications define the characteristics required of a material, supply or service so as to be able to fulfill the use for which they are intended. The technical specifications can also refer to environmental performance, design, performance, safety, conformity assessment, etc. 15 The official journal of the Greek State. It was first issued in The official journal of the European Union is a periodical published every working day in all the official languages of the European Union. 17 This is done, for example, (a) following another procedure which revealed irregular tenders or (b) when the nature of the public contract offered prevents prior pricing or (c) when no renderers have submitted any tenders in response to previous Open or Restricted Procedure or (d) when, for technical or artistic reason, the contract can be executed only by a particular economic operator or (e) in case of extreme urgency or unforeseeable events, etc. 13

14 Contracting Authority chooses, the longer the time period between the publication of the Contract Notice and the date for the submission of tenders it has to allow to possible candidates. Following the publishing of the Contract Notice and within a specific period of time, all interested tenderers submit their tenders. At the same time, the Contracting Authority has to prepare all internal procedures for the evaluation of the submitted tenders (e.g. appointment of all committees as provided by the relevant legal framework). Afterwards, the submitted tenders are opened and evaluated. At a first stage, a technical evaluation of the tender is conducted (if it complies in terms of satisfying all the preconditions set by the Contract Notice without departing from the restrictions set by it). At a second stage, those tenders which have been evaluated as complying with the Contract Notice (all others are rejected) are evaluated financially. In the end, the tender which is decided either as the lowest, if the award criterion is the lowest price, or as the economically advantageous, if this is the criterion that was chosen by the Contracting Authority and published to the Contract Notice, is awarded the contract. In the meantime, any tenderer whose tender had been rejected and raised an objection before the competent committee of the Contracting Authority, must have been given a written answer justifying the overruling of the objection or, in case the objection was sustained, must have been given the right to be evaluated at the second stage of the procedure (financial evaluation) The procedure before the Supreme Court of Audit The public contractual procedure, as described above, is a legal procedure. Based on the Rule of Law, the contracting authorities, part of the administrative power of the State, follow the established statute for the legitimate award of contracts of public works, supplies and services. The abovementioned procedure is a consequence of administrative acts. Each one of them is the legal instrument with which the Administrative Power proves that procedure was followed. The legality, for example, of 14

15 all the decisions made by an Evaluation Committee depends, not only on the justification given for every decision made according to the relevant legal framework, but moreover, on the existence of an initial legal rule used as the basis for the choice of the persons comprising the Committee. At the same example, if (a) the Evaluation Committee should have been composed of voting members possessing a minimum of technical and administrative capacities, and the administration of the Contracting Authority chose to set up an Evaluation Committee of voting members completely irrelevant to the technical expertise needed in order to make the crucial evaluating decision, or (b) if the chosen members, contrary to the relevant legal framework, are related to one of the tenderers, then, all the administrative procedure conducted by such a Committee is illegal. It is obvious that in such a case, corruption can be the real issue, lying under such choices. According to the punitive model, referred to above, such behaviors can many - if not most of the - times escape punishment. This happens especially when, in the modern environment of the free market economy, all the players of the game agree on a win-win model. The corrupted administration of a Contracting Authority abuses the entrusted public office in order to award the contract to the corruptor; one of the tenderers. The other tenderers often do not proceed with pressing charges, either because of absence of proof that can convince beyond reasonable doubt, either because of lack of financial support, either because of the tardiness of the judicial procedure, or, may be, least but not last, because they have agreed to do so with the corruptor they are going to switch roles with him at a future call for offers! Being self-evident by the aforementioned remarks that the punitive model is not effective enough at such a dangerous for corruption area as the public contracts of high financial value (public works, public supplies, and public services) is, this paper argues that the newly introduced in the Greek reality system of auditing this type of contracts preventively, by the Supreme Court of Audit, is a drastic anticorruption remedy. 15

16 The system is based on the preventive, objective anticorruption method. It is preventive, because the auditing of the procedure begins right after the issue of the last administrative act with which the Contracting Authority awards the public contract to the chosen lowest, or economically most advantageous - bidder. It is objective, because it focuses on the procedure without conducting investigations on the real facts of the case or on the intentions of the persons involved. It is based on the principle that, within the limits of a very well and in advance defined, detailed procedure, which is, step by step, reflected to written documents, referring to the content of a legal obligation and justifying that by a specific choice the obligation is fulfilled, it is really difficult, if not impossible, to proceed with a corrupted transaction. The judicial auditing begins, as noted above, after the last administrative act awarding the public contract. The prepared draft, before being signed by the parties, as well as the whole file of the procedure, is sent to the Supreme Court of Audit. Depending on the financial value of the public work, supply or service, the case goes either to one of the Judicial Units of the Court, composed of three judges, or to one of its Auditing Units, directed by a superior judicial employee, who is a qualified auditor. In both cases, the judge to whom the case is assigned or the auditor, audit all the procedure starting from the last administrative act and moving backwards until the initial administrative act is reached. The audit is a strict legality audit, focus in areas where the illegal acts indicate distortion of competition and corruption. If such a case occurs, reflected in the administrative procedure as an attempt to breach rules that ensure sound competition and ethical transactions, the Judicial Unit after deliberation or the auditor having reached such a conclusion, issue a decision ordering the Contracting Authority and the bidder to abstain from signing the public contract. If not, the Contracting Authority and the bidder are ordered to sign the public contract. The Contracting Authority, the bidder, any of the other candidates, as well as the Office of the Commissioner General of the State (representing the public interest) can then initiate, within a very short period of time (15 days) a trial before the competent Judicial Section of the Court. The latter, 16

17 acting at a superior to the Judicial Unit level, can annul the Unit s decision. At the public hearing of the case, all the involved parties have the right to participate and try to win their case. After the closing arguments of all the litigants, the public hearing is over and the case is then assigned to a judge of the Judicial Section, who is responsible for presenting the case for deliberation. The decision is issued obligatorily within 30 days. A third stage of judicial procedure is possible, before the Grand Chamber of the Court. Very few litigants choose to proceed before the Grand Chamber claiming that the decision of the Judicial Section was wrong. Yet, such a possibility is provided by the relevant legal framework. The judgments of the Judicial Section that are not appealed before the Grand Chamber or the judgments of the Grand Chamber are irrevocable and they oblige the litigants ex tunc. 17