Extract from the Analysis on Law 4412/2016 as part of the Money Show event
Published: Tuesday 21 February 2017 20:34

(Here is a small briefing regarding the analysis on the Law 4412/2016)


Good morning to everyone. With this analysis, I will attempt, at the time I am provided, to present in a clear way the advantages and disadvantages of the new legislation 4412/2016, as this is a huge piece of legislation and a detailed analysis cannot be made in the context of today's event.

So let's begin the analysis of Law 4412/2016 with a basic assumption. We can call it good or bad, complicated, in many provisions of the vague or perhaps incomplete, but with this law, and in general with this legislative regime, all those involved in public procurement should move forward, at least in the near future. Either from the legal point of view, or from the point of view of the contracting authorities, or the professional in the field of public procurement, it will be the main scope of the present analysis, given that ZOUBOULAKIS SA has been active in the field for almost 40 years, all involved have to become acquainted with the provisions of the law and the innovations that its implementation implies.

It is my general consensus that this law is not a monstrous or "dragon" or anything else that has been said about its criticism. With calm approach and its implementation in practice, I believe it will prove to be a useful tool both for contracting authorities and for economic operators active in the field.

I have to admit that it would be extremely useful to have the case-law data available to us because the courts are the ones who actually interpret the laws. This will help lawyers to interpret the law, but this is practically impossible, as we all know the delay in the administration of justice in the administrative courts, while the time we have passed with the current legislation is objectively minimal.

Before indicating the innovations brought about by the new law, it is useful to take a brief look at how we came to the adoption of 4412/2016 as the law of the state.

Following the tragicomical of Law 4281/2014, which embedded the abolished Directives 2004/17/EU and 2004/18/EU and which was never generally applicable, the adoption of Law 4412/2016 was a contractual obligation of Greece resulting from its participation in the European Union, as it concerns the incorporation into Greek legislation of Directive 2014/24/EU, on public procurement in general and Directive 2014/25/EU, on contracts concluded by entities in the fields of water, energy, transport and postal services, to replace the directive 2004/18/EC, 2004/17/EC, respectively. It is also noted at this point that Directive No. 2014/23/EU, which concerns the award of public-works and services concessions and which was incorporated into Greek law by Directive 4413/2016 (for the first time the European legislator issued a separate concession Directive because of the obvious economic importance of the subject, but this area will not be the subject of this study).

The Public procurement policy and the revision of the relevant directives have been integrated into an complete program aiming at a radical upgrading of public procurement in the European Union, contributing to the achievement of “Europe 2020” objectives for smart, sustainable and inclusive growth. The reform of public procurement legislation at European level was one of the twelve priorities of Single Market Act actions published in April 2011. In this context, a Union was adopted in January 2014 and published in the Official Journal of the European Union, on 28/3/2014, the above new directives.

Twenty-four (24) months were given to the Member States to incorporate the new directives into national law, with 30 additional months in particular for procurement procedures. This implies that Greece was obliged to harmonize its internal legal order with those of the new EU Directives until 18 April 2016. As it is known, Greece finally passed the new law shortly after the above-mentioned deadline, since 4412/2016 was published in the Government Gazette and entered into force on 8/8/2016, with a delay about four months. Also, there has been pressure on the Greek side to transpose directives into national law and our lenders' partners as part of the restructuring process of the Greek economy in order to remove multi-legislation that characterized the public procurement sector in the past.

            Perhaps in this hurry or rather better in this rush of the Greek legislator, who has delayed adopting the provisions of the new directives, is also due to the problems that have already arisen from the application of the law. It is no coincidence that simple reading of the text of the law demonstrates a bunch of spelling and expressive mistakes, many of which have already been corrected by Government Gazettes and newer laws. The main problems, however, do not obviously result from these errors, which to some extent make sense to embody in a lengthy and labyrinthine text, but from the general slowness of the state mechanism, which makes the application of several provisions dependent on the previous adoptions of ministerial decisions and presidential decrees, which creates reasonable uncertainty for both contracting authorities and economic operators and also has not adequately prepared the public sector the Member States, which are the eminently responsible for the preparation, conclusion and implementation of public procurement contracts.

The strangeness, however, of the law is not exhausted in many expressive or spelling mistakes. In several provisions, there is an innovatory regulation and then a regulation that is not clear how it should be interpreted in the same article. If we, lawyers, have problems of concluding interpretive conclusions from reading the law, it is obviously much more difficult for other stakeholders to know how to interpret the law. In particular for the contracting authorities, who have received minimum instructions for its implementations?

According to the introductory report of Law 4412/2016, Directives 2014/24/EU and 2014/25/EU and consequently the Law itself are aimed, inter alia, at the simplification and flexibility of rules and procedures. From the brief application of this law, impressions and opinions differ. On the one hand, significant improvements have been made to the procedures for conducting competitions, as will be explained further. On the other hand, it has been demonstrated that, in particular with regard to Local Authorities, the above purpose of simplification and flexibility has not been fully achieved, as there are issues that are either not explicitly regulated, resulting in a gap in the Law, or its regulation resulting in interpretative problems, as will be demonstrated below in our analysis of the drawbacks of L. 4412/2016. However, it is important to note first of all which changes introduced by the Greek legal order in 4412/2016 are novel and potentially can prove to be beneficial for the companies involved in public procurement as well as for the contracting authorities.