In March 2021, the Minister of Rural Development and Food sent a draft amendment proposing the possibility, for the year 2021, of assigning the execution of pest control services to the temporary bidders, until tenders can be completed and the relevant contracts signed, by exception of the provisions of law 4412/2016.
The Hellenic Single Public Procurement Authority (hereafter HSPPA) issued Opinion No. A3/2021 on this draft, giving a wholly negative opinion on the proposed provisions. The opinion comments that in fact this is not the first time that similar measures have taken place in the field of pest control for the olive fly, referring to the previous opinions issued by the Authority on the issue. For this reason they consider that, “ .. the consolidation of the exceptional possibility of awarding the pest control contracts in question establishes this not as an exceptional regulation, but as the introduction of a permanent deviation from the general rules of the current legislation (eg. for pre-contractual scrutiny, legal protection, etc.), regulating issues of awarding public contracts for the provision of pest control services in a different way from those defined in law 4412/2016, which does not comply with the requirement of legal certainty, the principles of equal treatment and the transparency that the above law requires,” which in turn “raises issues of compatibility with EU law.”
Despite the fact that according to Article 2 of law 4013/2011 the competent bodies must take into account the opinion of the HSPPA on the legality of draft laws (and therefore also amendments), on 6-4-2021 at 18:10 amendment 832/30/6-4-2021 from the Ministry of Rural Development was submitted and voted on the following day, passing into law as Article 24 of law 4792/2021. Article 4 of this amendment refers to the regulations on pest control issues and seems to have the same content (apart from some minor grammatical and syntax changes) as the draft amendment sent to the HSPPA.
Apart from the fact that in this case the rules of good legislation provided by the Constitution, Articles 87, 88 and 101 of the Rules of Procedure of the Parliament and the Manual of the Legislative Drafting Methodology for amendments were not observed, as the specific amendment was submitted late, the content of the provision itself raises compatibility issues with both national and EU law. This is because, as the HSPPA reports, it establishes a permanent derogation from the general rules applicable to public procurement, thus violating basic principles and requirements (legal certainty, equal treatment and transparency) that must be observed in the context of public procurement contracts.
However, the negative opinion of the HSPPA on this provision and the problems of legality that it highlights does not seem to have been taken into account by the authorities either during the introduction of the amendment for voting or during the vote in Parliament. And this is demonstrated in practice by the fact that the content of the provision did not change.
Finally, it is interesting to note that this opinion, as well as the legitimacy issues it raises, are not referred to in the regulatory impact analysis that accompanies this amendment (see pp. 21-23) and there appeared to be no discussion of the issue in the context of the debate held in Parliament on the bill.
Public procurement is seen as an area particularly prone to corruption. For this reason, law 4412/2016 as it is in force today, and the corresponding European directives governing public procurement issues, establish certain principles and requirements that must be observed in order to avoid corruption. Transparency, legal certainty and the principle of equal treatment are just some of these principles. The observance or not of these principles as well as the general legality and expediency of legislation that concerns issues of public contracts, are monitored by the HSPPA, (Hellenic Single Public Procurement Authority), which also expressed a negative opinion on the issue.
In this case, however, the negative opinion of the HSPPA, as well as the problems of legality and expediency that it points out, do not seem to have been taken into account by the bodies of executive and legislative power, and the proposed amendment was voted in as Article 24 of Law 4792/2021. Furthermore, the fact that this provision was introduced for voting through the submission of an overdue amendment in violation of the principles of good legislation and the rules of the Constitution and the Rules of Procedure of the Parliament, exacerbates the blow to the rule of law in this case.
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