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Directives

The following Community Directives on public procurement have been implemented into the national domestic legal system:

• Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts

• Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors

According to Danish law the public procurement directives are directly applicable since they are incorporated telles quelles. The directives have been implemented by the following governmental orders:

• Governmental order number 937 of 16 September 2004 concerning the procedures for the award of public works contracts, public supply contracts and public service contracts

• Governmental order number 936 of 16 September 2004 concerning procurement procedures of entities operating in the water, energy, transport and telecommunications sectors

The above mentioned governmental order number 937 implements the procurement directive 2004/18/EC on public works, supplies and services. Governmental order number 936 implements the utilities directive 2004/17/EC.

Each directive is printed as an annex to the respective governmental order. Thus the actual text of the directives constitutes the current legislation in the field of public procurement in Denmark.

Some of the new provisions in the new procurement directives are non-compulsory for Member States, e.g. the provisions on framework agreements, centralised purchasing, electronic auctions and competitive dialogue. This entails that each Member State must decide whether to implement these rules into national law. Denmark has chosen to give access to all new procurement procedures and instruments with only one limitation. Electronic auctions cannot be used in the field of public works contracts – mainly to prevent a risk of fragmenting the building process.

The new procurement directives have been in practical use in Denmark since 1 January 2005.

As a supplementary means, the Competition Authority has issued extensive guidelines on the use of the recent rules. The guidelines can be used interactively via the website making it possible to link to rulings of the European Court of Justice, practice from the National Complaints Board, the actual legal texts or recommendations from the Competition Authority etc.
The guidelines are available in Danish here.

Learn more about the different types of procurement procedures.

Remedies directives

• Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors

• Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts

The remedies directives are implemented into Danish law by:

• Law number 415 of 30 May 2000 on the Danish Complaints Board, amended by Act No. 450 of 7 June 2001, Act No. 306 of 30 April 2003, Act No. 338 of 18 May 2005
• Act No. 431 of 6 June 2005and Governmental order number 602 of 26 June 2000

The governmental order contains further detailed rules concerning the Complaints Boards’ competence and organisation, the procedures before the Board etc.

To learn more about the Danish Complaints Board please click here.

General principles

The EC Treaty lays down some fundamental principles which are generally applicable to contracting authorities when concluding public contracts. These general principles constitute the basis of the Danish legislation on public procurement. Among those are the principles of equal treatment, non-discrimination, transparency, proportionality and mutual recognition.

Contracting authorities must observe these fundamental principles when awarding all contracts, including contracts below EU thresholds and contracts regarding annex II B-services.

National legislation regarding contracts below EU threshold values

Public work contracts below the EU threshold value are governed by the Danish Act on Tender Procedures for Public Work Contracts, law number 338 of 18 May 2005. It entered into force on September 2005 and replaces law number 450 of 7 June 2001 on tendering procedures for work contracts and governmental order number 595 of 9 July 2002.

In addition, a governmental order has been issued by the Danish Minister of Economic and Business Affairs, governmental order number 817 of 23 August 2005.

The Act on Tender Procedures for Public Work Contracts applies to contracting authorities as defined in Directive 18/2004/EC, any other entity or body receiving public grants for the work in question and contractors who invite offers from subcontractors in relation to award of public works from a contracting authority.

As regards public procurement below EU-thresholds in the fields of services and supplies there is no specific Danish legislation governing the procedures. In these circumstances, only the general principles of the EC-Treaty apply.

The Ministry of Finance, however, has adopted a circular, number 159 of December 17 2002, which contains instructions to central government authorities concerning purchasing of services, goods and works. According to this circular, central government authorities must invite tenders for contracts above DKK 500,000.