Proposition 53K3000

Projet de loi modifiant la loi du 17 juin 2013 relative à la motivation, à l'information et aux voies de recours en matière de marchés publics et de certains marchés de travaux, de fournitures et de services et portant confirmation des dispositions concernant la protection juridictionnelle de deux arrêtés royaux pris en application de l'article 80, alinéas 3 à 5, de la loi du 15 juin 2006 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

Aug. 28, 2013

Official page

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Status

Adopted

Requirement

Simple

Subjects

public procurement appeal access to information

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Abstained from voting

Groen Ecolo ∉ N-VA LDD VB

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.
• Olivier Maingain (MR) abstained from voting.

Contact form ¶

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Discussion ¶

Oct. 24, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I refer to the written report and thank the author of this excellent report.

This is, of course, not a big ideological debate. Although, you know that the State does not have to provide for everything, but some things must be done well.

One of these is to enable governments and people who offer services to governments to establish and settle contracts in a good mutual understanding and in a proper manner.

In that sense, it is almost cynical that we stand here with a repair law, with which we must overturn the exorcism of the past.

I would like to talk about the first bill. That, on the one hand, is a piece of repair of a law dated June 17, 2013, three months ago. On the other hand, the present bill ratifies two royal decrees. The two elements need some clarification.

In the discussion of the law to be repaired today, the Conscious Law of 17 June 2013, we noted that it was strange, however, that such an important law, which was actually a transposition of European regulation, had to be closed by the House as a bill and not as a bill, only with the intention of escaping the Council of State.

At that time, we emphasized the fact that legislation is extremely important for the legal certainty of both contracting authorities and participants in procurement.

I remember that Mr. Van Biesen defended with fire here in the hemisphere that we as parliamentarians should still be able to apply much more of such important legislation, that we all knew that well enough, that we had consulted external specialists and that it was still good.

Today we are three months later. The words of Mr. Van Biesen at the time are not cold yet, but they are already considered to be very light-sensitive at the time.

Now to the repair legislation. For the report, I agree that my argument becomes equally technical, but it is important. It is not my habit to discuss this in the semi-circular committee work, but during the discussion in the committee we have asked a number of very relevant questions related to legal certainty or especially legal uncertainty, which were not answered. Therefore, these questions need to be repeated, for good order.

The State Council has in its report formulated comments to the preliminary draft law. I refer to those comments.

“Only with regard to the retroactive application of Article 2 of the draft can questions arise. In fact, it cannot be ruled out that the application of that provision from 1 July 2013 has the effect that certain safeguards in the field of justification, information and remedies with retroactive effect are no longer applicable to certain public contracts which fall within the scope of the application of the aforementioned Act of 13 August 2011. It is therefore not impossible – this is important – that the aforementioned article will interfere with pending court hearings and will be accompanied by a reduction in legal protection. This should be subject to accountability that meets the requirements set by the Constitutional Court. Such accountability shall be written in the memorandum of explanation.”

In the memory of explanation we have sought such accountability, but we have not found it. Therefore, we continue with the question we asked at the time in the committee to the Secretary of State, who locally explained the draft law to Mr. Di Rupo. He promised that the questions would be answered.

There should be a possibility to determine for how many public procurement contracts that legal uncertainty applies. We should be able to find out how many hanging things there are.

The second element of the proposed legislation concerns the ratification of a number of royal decrees on justification, information and remedies relating to the competition dialogue. In this context, too, a serious legislative problem arises, for which we have, by the way, provided a solution in the committee pushed aside by the government.

I don’t want to speak too technically, but it comes down to the next. On 28 September 2011, two royal decrees on the competition dialogue were issued, which were to provide a certain amount of legal certainty.

These two KBs had to be ratified by law within two years. You know what the date is today, colleagues. It is later than 28 September 2013. So we are too late. I quote from the document Legislative Techniques of the Council of State: “When the decisions have not been ratified by the legislator within the specified deadline, they should be considered to have never had effect.”

We can also look even further, in the case of persons who are said to know something about it, namely in the Handbook Belgian Public Law of the Lords Vande Lanotte and Goedertier. “If the executive power had been expressly authorized to settle a reserved matter, the decision taken by the special council must, in the absence of ratification with retroactive effect, disappear from the legal order, unless a category of citizens is temporarily affected by a measure which has not been the subject of a decision taken by a democratically elected advisory assembly.”

Very specifically, this actually means that the conscious KBs that need to be ratified today have never existed today. This is a very important element, because in the explanation of the original law of 2006 on the competition dialogue, which we are talking about, it is precisely stated that the new procedure of the competition dialogue cannot be applied without the additional KBs.

I have a question to which the answer was promised, but was not given. How many contracts have been placed through the competitive dialogue system? What tasks are it about? Unfortunately, legal proceedings are already underway. Is it so? Does the government recognize that this could be a problem? You understand that it is difficult to pursue legal proceedings in respect of legislation which is considered never to have existed.

Colleagues, this is prutswork, with which the government shows that it not only has bad visions, but also that it in fact simply fails to do its executive work effectively. We can only decide, colleagues, that this already creates problems for the relevant contracting authorities and participants. There is only one category of people who really do this: the lawyers who specialize in this type of legislation.

We will remember.

Per ⁇ it should be asked that in the case of citation of decisions of the State Council in an intervention or of citations of reference work, the interpreters can have the text and this, to facilitate the work and the quality of our interviews.

I thank you for translating from your own initiative, but in the written documents, it will be the official documents that will appear.