Supreme Court of Lithuania Pronounced on the Significance of Establishing the Value of Seized Assets in Case of Interim Relief Measures and in Case of Sale of Assets by Auction
The Supreme Court of Lithuania (hereinafter, the SCL) examined a civil case regarding the bailiff’s duty to take steps to establish the value of the assets sold by auction (civil case No. 3K-3-280).
In this case the court examined issues regarding the bailiff’s duty to properly assess the value of the assets in the execution process and regarding the infringement of the debtor’s rights in case of seizure of assets and sale of assets by auction. The SCL gave an explanation in this case regarding the purpose of the seizure of the assets and its difference from that in the process of sale of assets by auction.
It is indicated in the ruling that the seizure of assets is a means ensuring a real and efficient process of enforced execution. Therefore, when this relief measure is imposed on the debtor, the only important thing is whether the seized assets would be sufficient for fulfilment of the debtor’s duties. In case of the seizure of assets, it is not important to determine the exact market value of the seized assets. Taking this into account, when assets are seized, a specific evaluation of the assets is performed and the value of the assets so determined is only preliminary and in no way means that the assets must be sold for such a price.
Meanwhile, in case of sale of assets by auction and setting of their price, the SCL emphasized that account must also be taken of the debtor’s interests and the balance of the parties’ interests must be ensured. Therefore, judging on the infringement of the debtor’s rights due to improper evaluation of assets, such rights can actually be infringed not by seizure but by sale of assets by auction for a price which is too low.
Supreme Court of Lithuania Pronounced on Application of Public Procurement Principles in the Open Procedure for Award of a Concession
The Supreme Court of Lithuania (hereinafter, the SCL) examined a civil case regarding invalidation of decisions taken in the open procedure for award of a concession (civil case No. 3K-3-350/2010).
In this case the panel of judges examined issues regarding award of the concession, proper fulfilment of the tenderer’s duty to submit documents indicated in the terms of the tender procedure and regarding the application of provisions of the Law of the Republic of Lithuania on Public Procurement (hereinafter, the Law on Public Procurement) to disputes arising out of relations regulated by the Law of the Republic of Lithuania on Concessions.
The SCL noted that though public procurement (of services) and concessions for services are governed by separate specific laws, but by their essence these are similar legal relations. First of all, these relations have the same purposes of legal regulation, such as economic interest in the certain good, the need for which is satisfied by these types of public tender procedure, encouragement and ensuring of fair competition among participants, prevention of corruption of representatives of the authorities that organise the tender procedure, etc. It is characteristic of these relations, as noted by the SCL, that both types of them are marked by public interest and usually the same entity initiating the tender procedure. The court in its conclusion regarding the similarity of these relations also in its ruling refers to the case law of the European Court of Justice, where it is indicated that in spite of the fact that public procurement directives are not to be applied to services concessions, state authorities organising the services concessions are in general obliged to comply with the rules of the (ex) EC Treaty.
Thus, the panel of judges made a conclusion in this ruling that both the principles of freedom of the domestic market and the general principles of law, encouragement of free competition of suppliers bring closer the legal relations of public procurement and the legal relations of concession in the sense of verifying their lawfulness. Therefore, in examining disputes related to the tender procedure for a services concession, the lawfulness of actions of the awarding authority is to be estimated taking into consideration the principles of equality of rights and non-discrimination, transparency, proportionality and mutual recognition, the content of which should not be different from the principles of public procurement.
But the SCL, seeking not make the regulation of relations of public procurement and relations of concession too much the same, draws attention to the fact that the application of the principles of public procurement by analogy, as well as of the general requirements of publicity, objectivity and impartiality should not result in application of the procedure provided for in the Law on Public Procurement to concessions, as both the EU and the national legislator sought to provide for different procedures for performance of the tender procedures of these two types.