Brussels consults on effectiveness of remedies in public procurement

The European Commission has launched a consultation aimed at evaluating the effectiveness of remedies in the field of public procurement.

The two directives that set out the relevant remedies are:

• Directive 89/665/EEC, which covers the public sector;
• Directive 92/13/EEC, which covers the utilities sector. 

Both were subsequently amended by Directive 2007/66/EC.

Announcing the consultation last month, the Commission said: “The Remedies Directives require, as regards contracts falling within the scope of the Directives laying down substantive rules on public procurement (Directive 2004/17/EC and Directive 2004/18/EC, which are being replaced by Directive 2014/23/EU, Directive 2014/24/EU and Directive 2014/25/EU), that decisions taken by contracting authorities or contracting entities may be reviewed effectively and, in particular, as quickly as possible, on the grounds that such decisions have infringed EU public procurement law.

“Member States must ensure that the review procedures are available at least to any person having, or having had, an interest in obtaining a particular contract and who has been, or risks being, harmed by an alleged infringement.”

The Commission highlighted how the Remedies Directives allowed actions to be brought both before the contract was signed (pre-contractual remedies) and after (post-contractual remedies).

• Pre-contractual remedies are “intended to correct the infringement of the public procurement rules in the course of the tendering procedure and in any event, before the contract becomes effective”. These include the right of interim measures, a compulsory standstill period and the requirement to suspend the award procedure whilst the appeal is being investigated to prevent the award of the contract.
• Post-contractual remedies “aim to declare an existing contract ineffective and/or to provide compensation (mainly damages) to the affected parties after the contract in question has been awarded.”

The Commission noted that it was obliged under Directive 2007/66/EC to report to the European Parliament and to the Council on the effectiveness of the Remedies Directives, in particular of the alternative penalties and time limits.

“Furthermore, the Commission singled out Directive 2007/66/EC to undergo an evaluation under REFIT (Regulatory Fitness and Performance programme) in 2015,” it said.

“The objective of this evaluation is to assess the functioning of the provisions introduced by Directive 2007/66/EC. This public consultation should be understood in the context of the above-mentioned report to the Parliament and the Council and evaluation under REFIT.”

The consultation runs from 24 April to 20 July 2015.