Preliminary remarks

  • The Remedies Directive of 2007 aims at providing the economic operators with more effective national review procedures in order to ensure the effective application of the EU public procurement law. In particular, the Directive introduced a mandatory standstill period between the awarding and the conclusion of the contract, as well as the possibility the render a contract ineffective in case of illegal direct allocation.
  • CEEP represents employers and enterprises providing services of general interests and thus represents both economic operators and contracting authorities. Therefore it is crucial for CEEP that there is a balance between guaranteeing certain rights to economic operators and legal certainty for contracting authorities.
  • An effective Remedies Directive is of crucial importance for CEEP: in order to maintain the presumption of legality of the performance of the contracting authorities in public procurement (and avoid immediate economic responsibilities on public authorities), it is important that the rights of bidders are guaranteed by a judicial system which gives them adequate protection. At the same time, the burden on contracting authorities in terms of delayed procedures and legal insecurity has to be reduced as much as possible. This is important in order not to challenge the obligation of contracting authorities in terms of provision of public services.
  • It is important to remind that an effective implementation of the new public procurement package will help to avoid remedies procedures. The very essence of the new rules has been to provide a clearer legal framework to avoid remedies. In this context, the detailed codification of the possibility of “in-house” procedure and public-public cooperation in the new public procurement package is particularly important.

On the Effectiveness of the Remedies Directive

  • Overall CEEP believes that the Remedies Directive has provided better review procedures for economic operators. In particular, it has enabled to make the public procurement process more open and accessible. In the light of the public service obligations of CEEP members, one of most relevant provisions are the suspension of the award procedure, the possibility of ineffectiveness and the possibility of alternative penalties to ineffectiveness. However, regarding the latter point, it is problematic for public services providers when the possibility of applying alternative penalties instead of ineffectiveness for “overriding reasons relating to a general interest” is not transposed or clarified in national legislation.
  • There is no doubt that the existence of the Remedies Directive has lead to a multiplication of judicial procedures and therefore a delay in allocation procedures. Contracting authorities suffer from a lack of capacities compared to the increasing number of complaints. Furthermore, they are suffering from a lack of legal certainty and frivolous procedures. As a consequence, they can be reluctant to close a procedure because of the fear of being sued. In respect with the principle of procedural autonomy, Member States should organise review procedures in such a way to minimize the burden for contracting authorities. It appears that the procedures are particularly burdensome when it is dealt with at the level of ordinary courts rather than by a specialised review body. Alternative resolution mechanism might be adequate in some Member states where ordinary court procedures take long. Furthermore, intermediate mediation mechanisms might be helpful to avoid heavy delays in allocation procedures. Such mechanisms already exist in some member states (e.g. UK) and could be particularly useful when contracting authorities have to allocate tenders for projects of general interest.

PDF of CEEP’s answer to the Consulation on Remedies in Public Procurment

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