frsrdg · GV04JO1 · 2008-01-01 00:00:00 — However, I have determined that, irrespective of what was told, or thought she was told, by , it was of course incum- bent on the Taxation Authority to make its own appraisal of whether the in- formation could be used in taxation cases. During this appraisal the Authority should have realised that the information, acquired by virtue of the regula- tions on international legal assistance in criminal cases, could not be used in cases and hearings concerning supplementary taxation etc., at least not with- out the consent of the in . The Taxation Authority merits criticism for the fact that it was used nevertheless. Finally, I note that from the response submitted by Per , for one, it seems that at both the Taxation Authority and the National Economic BILAGA 10 20 07 /08 :JO1 the impression prevailed that the information from Luxem- bourg could have been used in taxation cases if it had been made public in connection with prosecution and a hearing in a criminal case. I would there- fore like to emphasize that when it comes to whether information of this kind can be used for any other purpose than that for which it was supplied the question of whether it is subject to secrecy is totally irrelevant. The conditions laid down in Section 5.1 of the ILACMA mean that Swedish authorities must under all circumstances comply with the conditions imposed by another state about the use of the information it supplies. In conclusion, it should be observed that if international cooperation is to function effectively, it is of course extremely important that both prosecutors and the Taxation Authority are aware of and comply scrupulously with the regulations that apply to the handling of cases like the one dealt with here. Contempt of court in a procurement case Summary of the adjudication of the Parliamentary Ombudsman Through a number of decisions in 2004 a local authority entered into agree- ments to the effect that a swimming club would undertake the operation of a swimming bath for a fee. A competing supplier appealed to the county admin- istrative court pursuant to the Act on Public Procurement (1992:1528). In its judgement the county administrative court decided that the procurement of services relating to the operation of the swimming bath should be repeated. No appeal was made and this judgement therefore gained the force of law. The local authority decided, however, not to procure the operation of the swimming bath. A complaint was submitted to the Parliamentary Ombudsman about the lo- cal authoritys failure to comply with the judgement of the court. An inquiry was launched and the local authority submitted its response to the complaint. It claimed that the reason for its failure to comply with the judgement of the county administrative court was that the agreements made were contractually binding in civil law and could not be cancelled without incurring the evident risk of having to pay damages. The Parliamentary Ombudsman requested to submit its opinion on the objection made by the local author- ity. In its response the Board pointed out that Swedish legislation contained no explicit provision requiring cancellation of a contract even if a court judge- ment on an appeal against a procurement had determined that it had been executed without the application of the appropriate procurement procedures as laid down in the Act on Public Procurement so that a new procurement should be undertaken. also pointed out that Article 2.6 in the classical Remedies Directive (89/665/EEC) laid down that the effect of the decision of a national court on a contract that had already been executed was to be determined by national legislation. 2 007 /0 8:JO1 B I L A G A 10 Public Procurement the current starting point for an appraisal of this kind was the basic civil law premise that a contract should be honoured. felt that procuring agencies should without delay and in some appropriate terminate contracts that had not been executed in accordance with the Act on Public Procurement, in particular if a judgement that had gained force of law stated that the act had been infringed. In his adjudication of 29 2007 the Parliamentary Ombudsman, . , began by pointing out that the value of the procurement exceeded the threshold value and that the procurement was therefore subject to the EU directive. The Parliamentary Ombudsman observed that Swedish legislation on pro- curement contained provisions enabling a court of law to decide that a pro- curement had to be repeated or that it could not be completed until an error had been rectified (Act on Public Procurement 7.2) but that otherwise there were no specific provisions about the consequences of a courts decision for the procuring agency. could any statutes be found in the national legisla- tion that laid down the effects that an appeal made by a company according to the Act on Public Procurement could have in terms of contract law. The Par- liamentary Ombudsman also pointed to the consistent lack in Swedish na- tional law of any statutory requirement of compliance with decisions on ap- peals made by a superior instance. This had obviously been taken for granted. The Parliamentary Ombudsman referred to the governments reference in the travaux préliminaires for its amendments to the Act on Public Procure- ment to the issue of the binding nature of contracts in civil law. The govern- ment had indicated that a contract that was binding in civil law could come into being before termination of a procurement according to the provisions of the Act on Public Procurement and that the procuring agency then ran the risk of liability for damages to the supplier awarded the contract initially. If a court determined that a new procurement was to be made, the government felt that the procuring agency could not reasonably honour the first contract. To avoid obligations in civil law to specific suppliers before the completion of procurements the procuring agency should, therefore, ensure that tender docu- ments stated that no agreement would exist before a procurement contract had been signed. The agency could opt to cover the period until finalisation of the procurement by signing a conditional contract (government bill 2001/02:142, p. The Parliamentary Ombudsman pointed out that these statements indi- cated that the possible existence of a civil law contract should not affect the liability of the procuring agency to comply with the court decisions on ap- peals lodged according to the Act on Public Procurement. The Parliamentary Ombudsman referred to statements about the binding nature of contracts according to civil law made by Court of in cases on procurement procedures (Judgement C- 20/01 and C-28/01, Commission v. ). According to the Parliamen- tary Ombudsman it was not clear how far conclusions based on these opinions could be applied to the situation dealt with in this inquiry. With regard to the actions of the local authority in this case the Parliamen- tary Ombudsman stated that the county administrative court had obviously BILAGA 10 20 07 /08 :JO1 considered that the existence of the contracts did not pose any obstacle to its hearing of the facts in the case and its decision that the procurement was to be repeated. If the local authority was unable for some reason to accept the judgement of the court, it should, in the opinion of the Parliamentary Om- budsman, have appealed against it in an attempt to alter the judgement. The local authority made no appeal and the judgement gained the force of law. The Parliamentary Ombudsman pointed out as well that the regulations on public procurement also impose requirements on the management of pro- curement by procuring agencies. According to the Parliamentary Ombuds- man, the procuring agency must be expected to be aware of these regulations and the obligations they impose. The execution of an agreement between a procuring agency and a supplier requires some form of joint intention and therefore the participation of the procuring agency in some way. If one were to believe that entering into a contract that was binding in civil law meant that the procuring agency was not required to comply with a court judgement, at the same time one would have to accept that the power to exe- cute such a contract enabled the procuring agency to determine itself whether it was required to comply with such a judgement. This seemed to the Parlia- mentary Ombudsman to be totally unreasonable. The Parliamentary Ombudsman also observed that the requirement in Article 1.1 of Directive 89/665 EEC that there should be a possibility of effective review of a procuring agencys decision must reasonably mean that this re- view would have some legal effect. Overall the Parliamentary Ombudsman considered that the local authority was required to comply with the decision of the county administrative court that the procurement should be repeated and expressed serious criticism of its failure in this respect.