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Author: Carri Ginter

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Applying the Unfair Contract Terms Directive to Public Contracts journal article

Carri Ginter, Mari Kelve-Liivsoo

European Procurement & Public Private Partnership Law Review, Volume 16 (2021), Issue 1, Page 65 - 72

Extending the effects of the unfair contract terms rules to public contracts produces unwanted side-effects. What is otherwise a level playing field in procurement, gets distorted by rules originally meant to protect consumers. Effectiveness of safeguards surrounding the process of procurement providing for equal opportunities and transparency is adversely affected if the balance of the contract can later significantly shift by applying private law apparatus and removing provisions from the concluded contracts. Keywords: standard terms; public procurement; procurement contract; public contract; invalidity; transparency; EU law; internal market; contract law; equal treatment; level playing field; consumer law; unfair contract terms

Excluded Tenderer’s Access to a Review in a Public Procurement Procedure journal article

Carri Ginter, Triin Väljaots

European Procurement & Public Private Partnership Law Review, Volume 13 (2018), Issue 4, Page 301 - 306

The article explores the preconditions for excluded tenderers’ locus standi. It is commonly accepted that a chance at a new procurement can serve as grounds for granting the right to challenge the buyer’s decisions. This article focuses on the specifics of a situation where the buyer has made a decision to exclude the review-seeking tenderer and aims to clarify the point at which their rights to request for review of the decisions of the contracting authority should terminate. Pro tempore this point seems to be the time when the decision to exclude the tenderer becomes final. A specific set of facts from the procurement of trams for the City of Tallinn is used to demonstrate that at times this may lead to a race between judges. This makes the right to seek a review a matter of chance and not of law. Giving precedence to the time of filing a request for review is more in harmony with the Remedies Directives. In certain jurisdictions the principles of equivalence and effectiveness could be used to achieve this. If, in most cases, the national courts check the right to file a claim at the time of filing of the claim and not later, such treatment could be extended to requests for review filed by excluded tenderers. Keywords: Locus standi; Judicial remedies; Excluded tenderers: Remedies Directives.

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