Appeal by EDF over Nuclear Tender was Dismissed

In the first-instance decision on Électricité de France's ("EDF") application, the Office stated in October 2024 that, under the Public Procurement Act, it is not possible to file objections against a specific procedure of the contracting authority in the context of the award of a public contract outside the award procedure. In the case under investigation, the contracting authority Dukovany Power Plant II proceeded on the basis of the safety exception under Article 29(a) of the Public Procurement Act. Therefore, according to the Office, the applicant did not have the possibility to raise objections and, consequently, did not have the possibility to submit an application to the Office.

In another part of the application, EDF alleged violations of the Foreign Subsidies Regulation and non-compliance with the 3E principles. The Office dismissed this part of the application as it does not have the power to review compliance with the Foreign Subsidies Regulation or the principles of economy, effectiveness and efficiency.

In particular, in its appeal, EDF sought to argue that the Office also had the power to review the contracting authority's conduct in the context of the award of a public contract outside the award procedure on the basis of an exemption, alleging, for example, non-compliance with the fundamental principles of public procurement, in particular in relation to the selection of the preferred supplier - Korea Hydro & Nuclear Power Co., LTD - and also, for example, the substantial extension of the subject matter of the contract, the inability of the preferred supplier to perform the contract, as well as certain procedural errors by the Office.

The Chairman of the Office agreed with the conclusions of the Appellate Commission and stated that the Office had made a correct and lawful decision in the first instance. "The law does not provide for the possibility to file objections against such acts of the contracting authority, as it is a procedure outside the award procedure. ... If it is not possible to file objections, one of the basic prerequisites for filing objections, without which it cannot be considered on its merits, is not fulfilled. Therefore, the Office is clearly not entitled to review a contracting authority's compliance with the principles when proceeding outside the award procedure, " Chairman of the Office, Petr Mlsna confirmed. The possibility of reviewing individual acts of a contracting authority proceeding on the basis of an exemption does not arise from the EU "review directive". However, the Chairman, like the Office, referred EDF to the possibility of judicial protection. EDF has the possibility to file an action against the Authority's decision with the Regional Court in Brno.

Three other decisions related to the contract in question were also issued today. In the first, the Chairman of the Office closed the administrative proceedings initiated at the request of Westinghouse Electric Company LLC, in view of the withdrawal of both the application and the appeal. In the other two, the appeals against the decision on the participation of the preferred supplier KHNP in the administrative proceedings were dismissed.

The course of these proceedings was significantly affected by the need to deliver documents to the Republic of Korea by standard postal services. Each of these communications involved a prolongation of the proceedings for more than one month.

All decisions become final once they have been delivered to the parties to the proceedings. Upon the entry into force of the decision, the prohibition to conclude a public procurement contract no longer applies.

 

Press Unit of the Office for the Protection of Competition
25/85 – R0168/2024