Different courts must not pass different sentences for similar offences. This is the opinion of the Swedish Competition Authority, which is appealing a sentence regarding procurement damages/fines to the Supreme Administrative Court.
Three out of four Administrative Courts of Appeal have scrutinized how the procurement damages/fines should be calculated. Two of these courts have agreed with the Swedish Competition Authority's line and in those cases the Administrative Courts of Appeal accepted the method of calculation opted for by the Swedish Competition Authority since the stricter legislation on public procurement entered into force in 2010. In the third judgement, which recently was delivered from the Administrative Court of Appeal in Sundsvall, the fine was set at a lower level than usual in a case involving illegal direct award of i.a. road maintenance in Falun.
The Swedish Competition Authority is now appealing the judgement to the Supreme Administrative Court in order to gain clarity over how procurement damages/fines should be calculated.
"It must be possible to foresee the potential consequences of a breach of law. Such consequences must also be equivalent in all parts of the country. Consequently, we have decided to appeal", says the Swedish Competition Authority's Per Karlsson, Head of Legal Department .
If a municipality, county council or state authority makes an illegal direct award, they can be sentenced to pay procurement damages/fines. Such fines will amount between SEK 10,000 and SEK 10 million, but no more than 10 per cent of the value of the contract. As of today, the procurement damages/fines have normally amounted to a figure between seven and eight per cent of the value of the contract. In certain cases involving aggravating or extenuating circumstances, these have been higher or respectively lower.
The procurement damages/fines that the Administrative Court of Appeal in Sundsvall sentenced the municipality to pay were equivalent to less than five per cent of the value of the contract, despite their being no extenuating circumstances.
"It is important that the Supreme Administrative Court now sets out how procurement damages/fines should be calculated when illegal direct awards have been conducted. For the rule of law to be maintained, it is of great importance that similar crimes are not sentenced differently in the four Administrative Courts of Appeal", says Per Karlsson.
For further information, please contact:
Jimmy Dominius, Press Officer, tel. +46 (0)8-700 15 80, or +46 (0)76-542 158 0
Per Karlsson, Head of Legal Department, tel. +46 (0)76-542 15 56
Kristoffer Sällfors, Legal Counsel, tel. +46 (0)76-542 16 07