Europaudvalget 2017
KOM (2017) 0028
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EUROPEAN
COMMISSION
Brussels, 24.1.2017
SWD(2017) 13 final
COMMISSION STAFF WORKING DOCUMENT
EVALUATION OF THE MODIFICATIONS INTRODUCED BY DIRECTIVE
2007/66/EC TO DIRECTIVES 89/665/EEC AND 92/13/EEC CONCERNING THE
EUROPEAN FRAMEWORK FOR REMEDIES IN THE AREA OF PUBLIC
PROCUREMENT/ REFIT EVALUATION
Accompanying the document
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND
THE COUNCIL
ON THE EFFECTIVENESS OF DIRECTIVE 89/665/EEC AND DIRECTIVE
92/13/EEC, AS MODIFIED BY DIRECTIVE 2007/66/EC, CONCERNING REVIEW
PROCEDURES IN THE AREA OF PUBLIC PROCUREMENT
{COM(2017) 28 final}
EN
EN
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TABLE OF CONTENTS
1.
2.
3.
3.1.
3.2.
3.2.1.
3.2.2.
3.2.3.
3.2.4.
3.2.5.
3.2.6.
3.3.
3.3.1.
3.3.2.
4.
4.1.
4.2.
5.
6.
6.1.
6.2.
6.3.
6.4.
6.5.
6.6.
6.7.
6.8.
6.8.1.
6.8.2.
6.8.3.
7.
7.1.
7.1.1.
Executive summary ...................................................................................................... 6
Introduction................................................................................................................. 12
Background - The Remedies Directives ..................................................................... 14
The founding Remedies Directives (Directives 89/665/EEC and 92/13/EEC) .......... 14
Directive 2007/66/EC ................................................................................................. 16
Automatic debrief and ‘standstill period’ ................................................................... 17
Time limits for pre-contractual remedies ................................................................... 18
An automatic suspension ............................................................................................ 18
Ineffectiveness ............................................................................................................ 18
Time limits for bringing an action for ineffectiveness ............................................... 20
Alternative penalties ................................................................................................... 20
Other aspects related to remedies ............................................................................... 21
Costs of proceedings ................................................................................................... 21
Time-limit for the duration of the review procedures................................................. 22
Evaluation — general aspects ..................................................................................... 22
Intervention logic ........................................................................................................ 22
Evaluation criteria and evaluation questions .............................................................. 23
Methodology ............................................................................................................... 24
Implementation — state of play ................................................................................. 25
First instance review bodies........................................................................................ 25
The right to bring an action or to appear before a court ............................................. 25
Interim measures, set aside decisions and damages ................................................... 25
Automatic debrief and ‘standstill period’ ................................................................... 26
Automatic suspension ................................................................................................. 27
Ineffectiveness ............................................................................................................ 27
Alternative penalties ................................................................................................... 29
Time limits for review ................................................................................................ 29
Pre-contractual remedies ............................................................................................ 29
Ineffectiveness ............................................................................................................ 29
Damages ..................................................................................................................... 29
Answers to the evaluation questions........................................................................... 30
Effectiveness ............................................................................................................... 30
Actual usage of the provisions .................................................................................... 30
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7.1.2.
7.1.3.
7.1.4.
7.1.5.
7.2.
7.2.1.
7.2.2.
7.2.3.
7.2.4.
7.3.
7.3.1.
7.3.2.
7.3.3.
7.4.
7.5.
8.
Effectiveness in meeting the objectives ...................................................................... 33
Factors affecting the effectiveness.............................................................................. 36
Deterrent effects of the Remedies Directives ............................................................. 44
Conclusions — effectiveness:..................................................................................... 45
Efficiency .................................................................................................................... 46
Cost / benefits ............................................................................................................. 46
Overall cost/benefit relationship ................................................................................. 48
Administrative burden ................................................................................................ 49
Conclusions — efficiency: ........................................................................................ 50
Relevance .................................................................................................................... 51
Stakeholders’ views on relevance ............................................................................... 51
Actual usage of the provisions .................................................................................... 53
Conclusions — relevance: ......................................................................................... 54
Coherence with other policies .................................................................................... 54
The EU added value.................................................................................................... 56
Conclusions................................................................................................................. 59
Annex 1 — Case-law concerning remedies in the area of public procurement........................ 60
Annex 2 — Synopsis report of consultation activities.............................................................. 63
Annex 3 — Summary of open online public consultation ........................................................ 70
Annex 4 — Questionnaire circulated to Member States on 15/10/2015 (deadline to reply:
23/11/2015) ................................................................................................................. 91
Annex 5 — National measures transposing Directive 2007/66/EC.......................................... 93
Annex 6 — Types of first instance review bodies in Member States as of March 2016........ 105
Annex 7 — The use of VEAT notices by member state in the period 2009-2012 ................. 106
Annex 8 — Implementation of alternative penalties by Member State.................................. 107
Annex 9 — Time limits by Member State .............................................................................. 108
Annex 10 — Length of review ............................................................................................... 111
Annex 11 — Provisions for the costs of review procedures by Member State ...................... 114
Annex 12 — The number of second instance decisions in 2009-2012................................... 115
Annex 13 — The number of third instance decisions in 2009-2012 ...................................... 116
Annex 14 — Frequency of remedies sought in 2009-2012 .................................................... 117
Annex 15 — Glossary ............................................................................................................. 118
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INDEX OF TABLES
Table 1: Number of decisions by Member State and year in 2009-2012 ................................ 31
Table 2: Number of decisions by Member State and year in 2012-2014 ................................ 32
Table 3: Effectiveness of the Remedies Directives — transparency ....................................... 33
Table 4: Effectiveness of the Remedies Directives — fairness ............................................... 33
Table 5: Effectiveness of the Remedies Directives — openness and accessibility ................. 34
Table 6: Legal practitioners’ perceptions of the impact of the remedies —percentage of
respondents .............................................................................................................................. 35
Table 7: The interest of economic operators v contracting authorities .................................... 42
Table 8: The cost of review (mean and median) by economic operators and contracting
authorities ................................................................................................................................. 47
Table 9: The cost of review as a percentage of the size of contract ........................................ 47
Table 10: Total cost of review according to legal practitioners, by different contract sizes ... 48
Table 11: Standstill periods between the award decision and the conclusion of the contract (in
days) ......................................................................................................................................... 57
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INDEX OF FIGURES
Figure 1: Intervention logic model .......................................................................................... 22
Figure 2: The number of VEAT notice published in OJEU/TED by year 2009-2015 ............ 28
Figure 3: The share of VEAT notices published in OJEU/TED 2009-2015 by country ......... 28
Figure 4: Perceptions of improvement of public procurement aspects.................................... 35
Figure 5: Estimated length of the review in first instance (pre-contractual remedies 2009-
2012) ........................................................................................................................................ 37
Figure 6: Dispersions of length of review in first instance (pre-contractual remedies 2009-
2012) ........................................................................................................................................ 38
Figure 7: Average length of review procedures in months (review before the ordinary courts)
.................................................................................................................................................. 39
Figure 8: Average length of review procedures in months (review before administrative body)
.................................................................................................................................................. 40
Figure 9: Dispersion of review fees within Member States (for contract values of EUR 250
000, EUR 1 million, and EUR 10 million) .............................................................................. 41
Figure 10: Dispersion of review costs as a percentage of the size of contract (estimates by
Member States) ........................................................................................................................ 48
Figure 11: Relevance of different provisions of the Remedies Directive ................................ 52
Figure 12: Remedies Directive’s provisions from the most relevant to the least relevant ...... 52
Figure 13: The share of responses to public consultation by participant’s category ............... 63
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1.
E
XECUTIVE SUMMARY
Background
The EU Public Procurement Directives
1
(the ‘Procurement Directives’) regulate award
procedures and limited aspects of the execution of public contracts and concession contracts
(the ‘contracts’) above certain thresholds. Experience in implementing the Procurement
Directives has shown that their objectives could not be entirely achieved if economic
operators were unable to ensure that their rights were observed across the EU through access
to clear, rapid and effective procedures. Directives 89/665/EEC and 92/13/EEC
2
were
adopted to this end.
Directives 89/665/EEC and 92/13/EEC were thoroughly amended by Directive 2007/66/EC
to improve the effectiveness of review procedures concerning the award of public contracts
and to ensure better compliance with EU law, especially at a time when breaches can still be
corrected. In particular, the Directive introduced a mandatory standstill period between the
decision to award a contract and the conclusion of the contract in question. To help address
problems encountered by unsuccessful tenderers in relation to the access of relevant
information specifying reasons why their offers were rejected, the Directive introduced an
automatic debrief to tenderers at the time of the contract award decision. The Directive also
provided for the sanction of contract ineffectiveness to address illegal direct awards which
are considered as the most serious breach of Union law in the field of public procurement.
Directives 89/665/EEC and 92/13/EEC as amended by Directive 2007/66/EC require the
Commission to review their implementation and to report to the European Parliament and to
the Council on its effectiveness, and in particular on the effectiveness of the alternative
penalties and time limits.
In December 2012, the Commission launched a regulatory fitness and performance
programme (REFIT)
3
and as a result the Commission identified
4
Directive 2007/66/EC as
legislation that should be evaluated in order to determine whether it contains any unnecessary
or disproportionate regulatory burden which could be removed and, more generally, whether
it delivers on its objectives and remains fit-for-purpose, considering the major changes that
took place for the EU Public Procurement Directives.
1
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 sector and
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. Both
Directives were replaced by Directive 2014/23/EU of the European Parliament and of the Council of
26 February 2014 on the award of concession contracts, Directive 2014/24/EU of the European Parliament and
of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, and Directive
2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities
operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC.
For the sake of simplification, in the text of this Staff Working Document reference is made only to Directive
2004/17/EC and Directive 2004/18/EC since those Directives were applicable during the period on which this
evaluation focuses.
2
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 which covers the public sector and 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 which covers the utilities sector.
3
Communication ‘EU Regulatory Fitness’, COM(2012) 746.
4
‘Communication from the Commission — Regulatory Fitness and Performance Programme (REFIT): results
and next steps’, COM(2013)685.
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For the sake of simplification, any reference in this document to the Remedies Directives is
understood as referring to Directives 89/665/EEC and 92/13/EEC as amended by Directive
2007/66/EC unless indicated otherwise
5
.
Findings
This evaluation assesses the functioning of the Remedies Directives, i.e. whether following
their amendments by Directive 2007/66/EC, the Remedies Directives have achieved their
objectives and whether they are still fit-for-purpose today. The five evaluation criteria are:
1) effectiveness;
2) efficiency;
3) relevance;
4) coherence with other policies and
5) EU added value.
There is currently no EU-wide monitoring and evaluation system of remedies action in
Member States in place. Data for remedies on public contracts above thresholds brought in
each Member State are not collected in a structured, coherent and systemic manner that
would allow analysing the results obtained in an automated and easily comparable way. For
this reason, the proper measurement or estimation of the effects of the Remedies Directives is
difficult and requires additional actions (e.g. one-off data collection and manual analysis, as it
was the case in the current evaluation).
Various sources of information were used to collect evidence on the functioning and added
value
6
of the Directives', with the following conclusions:
(i) In terms of
effectiveness,
the Remedies Directives have generally met their objectives of:
increasing the guarantees of transparency and non-discrimination; allowing effective and
rapid action to be taken when there is an alleged breach of the Procurement Directives;
and providing economic operators with the assurance that all tender applications will be
treated equally. The available data on the actual usage of the provisions added further
evidence on the effectiveness of the Directive. In general, the remedies provided in the
Remedies Directives were frequently used in most of Member States. There were around
50 000 first instance decisions across Member States during 2009-2012. The most
frequently type of remedy sought is set aside decision, followed at distance by interim
measures and the removal of discriminatory specifications. As far as the opinions of the
stakeholders were concerned, a clear majority of respondents to the public consultation
carried out by the Commission departments considered that the Remedies Directives have
had a positive effect on the public procurement process. It is considered to be more
transparent (80.59%), fairer (79.42%), more open and accessible (77.65%) and it provides
greater incentive to comply with substantive public procurement rules (81.77%). As
confirmed by virtual consensus among all the interested parties, Directive 2007/66/EC
substantially increased the effectiveness of pre-contractual remedies by introducing a
5
6
Directive 2014/23/EU introduced further amendments to Directives 89/665/EEC and 92/13/EEC, mainly to
extend their scope of application ith regard to concessions. Since its deadline for transposition elapsed on 18
april 2016, its impact is not addressed in this evaluation.
These mainly included: public stakeholders consultations, exchanges within the Commission's experts group,
exchanges among national authorities in charge of public procurement policy, supportive Study carried out by
an external contractor, consultations with first instance administrative review bodies and judges of supreme
administrative courts dealing with public procurement, overview of relevant case-law, data from the Official
Journal of the European Union (‘OJEU/TED’, and more specifically the online version of its supplement
dedicated to public procurement, Tenders Electronic Daily or TED – http://ted.europa.eu/), information
provided by representative associations and academic literature review.
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minimum standstill period between the notification of an award decision and the signing
of the contract.
Some national systems require that legal protection in public procurement procedures is
provided at first instance by administrative review bodies rather than ordinary courts. As
a general trend, these tend to be more effective. This is confirmed by a large majority of
respondents to the public consultation (74.7%) who considered that procedures before
ordinary courts take generally longer and result in lower standards of adjudication than
the procedures before specialised administrative review bodies.
In most cases, the costs of review procedures, albeit very divergent across Member States,
do not seem to have decisive dissuasive effect on the access to remedies. Moreover, the
Remedies Directives are also well balanced in addressing the interest of all parties
concerned. In particular, 57.06% of respondents to the public consultation considered that
the Directives evenly balance the interest of economic operators in ensuring the
effectiveness of public procurement law and the interest of contracting authorities in
limiting frivolous litigation. As a final point, the Remedies Directives are also effective as
a deterrent to non-compliant behaviour in the area of public procurement.
The Remedies Directives require the Commission in its report to the European Parliament
and to the Council to pay particular attention to the effectiveness of alternative penalties
and time limits. The evaluation has revealed that alternative penalties are sporadically
used in Member States and were considered by respondents to the online public
consultation (carried out by the Commission departments) and by some Member States to
be the least relevant remedy. Nonetheless, views were expressed that all remedies
provided for in the Remedies Directives contribute to their deterrent effect and provide
for a comprehensive and effective system for sanctioning irregularities in public
procurement. Concerning time limits, no specific evidence was gathered in the context of
the evaluation that would demonstrate that time limits that follow the structure of the
Remedies Directives are either too long and cause undue delays in the public procurement
process or too short and thereby do not allow economic operators to enforce their rights.
The evaluation revealed that certain aspects of the Remedies Directives could be made
clearer. This is confirmed by the contributions received. This applies, for example, to
matters such as the interplay between the Remedies Directives and the 2014 legislative
package on public procurement, and the development of criteria to be applied to lift the
automatic suspension of the conclusion of the contract following the lodging of a legal
action.
The evaluation also made it possible to identify problems that persist at national level. In
particular, various stakeholders confirmed in the context of the public consultation that
problems identified are rooted either in national legislation beyond the Remedies
Directives or in national practices, and not in the Remedies Directives.
Finally, the Commission also recognises that in most Member States the information on
national remedies systems is not collected in a structured manner, making the analysis of
the performance of the Directives extremely difficult. In addition, it is rarely used for
policymaking purposes (for example, identification of resources needed or abusive
complaints; consistency of decisions based on effective searching tools; identification of
contracting authorities/entities against which successful complaints are lodged most
often; and identification of the aspects of procurement procedures that are appealed
successfully).
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(ii) In terms of
efficiency,
the Remedies Directives provide overall benefits in line with the
intended impacts, both direct and indirect. There are clear indications that the benefits
achieved through the Directives outweigh their costs. The costs to contracting authorities
and suppliers of bringing forward or defending a review case (including direct and
indirect costs) vary widely across the EU, typically accounting for 0.4%-0.6% of the
contract value. It should be also noted that the costs would not reduce to zero if the
Remedies Directives were repealed. On the contrary, they could be even higher because
of national differences in the review and remedies rules and a lack of harmonisation at the
level leading to a more cumbersome context for tenderers and others.
The benefits are important in terms of sound financial management, the best price/quality
ratio and deterrence, especially when considering the value of invitations to tender
published on Tenders Electronic Daily. The 2011 evaluation of EU public procurement
legislation in general
7
estimated that savings of 5% realised for the 420 billion of public
contracts that were published at EU level would translate into savings or higher public
investment of over EUR 20 billion a year. The effective implementation of the Remedies
Directives can therefore make such estimated savings from the Public Procurement
Directives more likely to happen. Finally, the evaluation did not identify any
administrative burden considered to be unnecessary for the operation of the Remedies
Directives.
(iii)Concerning
relevance,
the objectives of the Remedies Directives are still relevant. The
evaluation revealed that many provisions of the Directives are perceived as relevant
across suppliers, contracting authorities and legal practitioners. Based on replies to the
public consultation, the most relevant provision appears to be the standstill period (65%
of respondents), followed by the suspension of the contract award procedure where
review proceedings are initiated (62%) and the automatic debrief to tenderers (58%).
Even if certain provisions are perceived to be of less practical value, they still contribute
to the deterrent effect of the Remedies Directives. Another indicator of the relevance of
the Remedies Directives is the actual use of the procedures they provide. In general, the
remedies provided are frequently used in most Member States. There were around 50 000
first instance decisions across Member States during 2009-2012
8
. The most frequently
type of remedy sought is set-aside decision, followed at some distance by interim
measures and the removal of discriminatory specifications.
(iv) The Remedies Directives are
coherent with other EU policies.
As confirmed by the
Court of Justice of the European Union, the right to an effective remedy is a general
principle of EU law. In the light of this, the Remedies Directives are in line with the
rights and general principles laid down in EU primary law concerning fundamental rights.
The Remedies Directives lie at the core of public procurement legislation as they allow
bidders to enforce their substantive rights. They were found to be generally aligned with
the 2014 legislative package on public procurement, in particular to cover the concessions
subject to Directive 2014/23/EU. Nonetheless, as already mentioned above in section
referring to effectiveness, the interplay between the Remedies Directives and the new
legislative package on public procurement could be further clarified. Finally, by
improving the effectiveness of national review procedures, especially those dealing with
illegal direct awards of contracts, the Remedies Directives also play an important role in
7
8
The Evaluation Report on Impact and Effectiveness of EU Public Procurement Legislation, SEC(2011) 853
final.
This figure came from the Study "Economic
efficiency and legal effectiveness of review and remedies
procedures for public contracts",
further explained in section 5 of this Staff Working Document.
9
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effectively tackling breaches of Procurement Directives that could also entail
irregularities with criminal implications. The evaluation has not found any possible
conflicts with other policy fields, but rather the contrary.
(v) In the Commission’s view, the Remedies Directives present a clear
EU added value.
It
was generally confirmed by all sources of information used for the purposes of the
evaluation that it is of utmost importance to have EU law requirements for remedies in
public procurement. Ordinary courts under ordinary procedural codes cannot guarantee
rapid and effective review as required by EU case-law. For instance, before a mandatory
standstill period was introduced by Directive 2007/66/EC, no interim measure before
ordinary courts was rapid enough to suspend conclusion of the awarded contract.
Compared with other fields of EU law, public procurement rules have certain
specificities. Firstly, as long as the contract is above the EU thresholds, the substantive
public procurement rules are applicable, irrespective of the actual cross-border interest.
Secondly, in each tendering procedure conducted by any contracting authority/entity there
is a significant potential for numerous infringements (e.g. unlawful exclusion of
tenderers, unlawful tender specifications, unlawful contract award criteria, use of the
wrong procedures, accepting abnormally low tenders, conflict of interests, etc.) The role
of the Commission, when dealing with individual complaints and potential infringements
of EU law, is directed to ensuring future systematic respect for EU law, rather than
obtaining remedies for individual parties to public tendering procedures particularly given
the large volume of contracting authorities, tenderers and procedures in the EU and the
technicalities involved in each individual process.
Suitable rights of direct recourse for bidders are therefore indispensable for the correct
functioning of the substantive public procurement rules and for the proper operation of
the single market in the public sector. As confirmed by numerous stakeholders, the
minimum level of harmonisation ensured by Remedies Directives is absolutely essential
in this respect.
Conclusions
Based on the evaluation, the Commission concludes that the Remedies Directives, in
particular the amendments introduced by Directive 2007/66/EC, largely meet their objectives
in an effective and efficient way although it has not been possible to quantify the concrete
extent of their cost/benefits. Even if specific concerns are reported in some Member States,
they usually stem from national measures and not from the Remedies Directives themselves.
In general qualitative terms, the benefits of the Remedies Directives outweigh their costs.
They remain relevant and continue to bring EU added value.
Despite the overall positive conclusion of the evaluation, certain shortcomings were
identified, in particular as regards the clarity of some provisions and the availability of data.
Data for remedies actions on public contracts above thresholds brought in each Member State
are not collected in a structured, coherent and systemic manner that would allow comparing
the results obtained. For this reason, the proper measurement or estimation of the effects of
the Remedies Directives is more difficult.
Based on the information gathered in this evaluation, the report from the Commission to the
European Parliament and the Council on the effectiveness of Directive 89/665/EEC and
Directive 92/13/EEC, as modified by Directive 2007/66/EC, concerning review procedures in
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the area of public procurement to which this document accompanies, draws the necessary
operational conclusions and proposes relevant paths of action.
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2.
I
NTRODUCTION
The Procurement Directives regulate award procedures of public contracts and concessions
contracts (‘contracts’) above certain thresholds. The estimated value of tenders published in
'Tenders Electronic Daily'in 2014 amounted to EUR 421.31 billion, which is 3.32 % of EU
GDP.
9
The Procurement Directives apply common principles of transparency, equal
treatment, non-discrimination, open competition and sound procedural management to award
procedures to the benefit of economic operators across the single market. Open and well
regulated procurement markets also contribute to a more efficient use of public resources and
to the improvement in the quality of public purchases.
The experience acquired with the Procurement Directives showed that to meet completely
their objectives, economic operators had to be able to enforce the rights conferred by those
Directives everywhere in the EU. Consequently, the 'Remedies Directives' (Directives
89/665/EEC and 92/13/EEC, as amended through Directive 2007/66/EC
10
) were adopted as
flanking measures. These Directives ensured that, based on minimum EU review standards,
economic operators across the EU would have access to rapid and effective procedures for
seeking redress in cases where they considered that contracts had been awarded in breach of
Procurement Directives. This was, and is, crucial to making sure that public contracts
ultimately go to the company which has made the best offer, and therefore to building
confidence among business and the public that public procurement procedures are fair. They
are also an indispensable complement to Commission enforcement actions in the field of
public procurement, leaving the Commission to focus on cases in which essential matters at
EU level are at stake.
The Remedies Directives require the Commission to review their implementation and to
report to the European Parliament and to the Council on its effectiveness, and in particular on
the effectiveness of the alternative penalties and time limits.
In December 2012, the Commission launched a regulatory fitness and performance
programme (REFIT).
11
The purpose of the REFIT programme was to:
•
identify opportunities to reduce regulatory costs and cut red tape;
•
simplify regulation in order to meet policy goals; and
•
achieve the benefits of EU regulation at the lowest possible cost.
Fitness checks and evaluations of existing legislation are among the tools used by the REFIT
programme to achieve these objectives. As the reform of the public procurement was
followed up by the administrative burden programme and taken on board by REFIT, it was
decided that the Remedies Directives should also be linked to REFIT, so that the regulatory
fitness of the whole framework for public procurement would be assessed. Subsequently, the
European Commission, 2016, 2014 Public procurement indicators
,
http://ec.europa.eu/growth/single-
market/public-procurement/studies-networks/index_en.htm
10
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; 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; and Directive 2007/66/EC of
the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC
and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of
public contracts.
11
COM(2012) 746 final of 12.12.2012.
9
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Commission Communication on "REFIT
– results and next steps"
12
identified the
amendments introduced in the Remedies Directives by Directive 2007/66/EC as legislation
that should be evaluated in order to determine whether it delivers on its objectives at
reasonable costs, is relevant, coherent and has EU added value. Opportunity was therefore
taken to perform the overall evaluation of the performance of the Directives and examine
whether they remain fit-for-purpose.
As far as the scope of this evaluation is concerned, it is important to note that Directive
2014/23/EU on the award of concession contracts introduced further amendments to
Directive 89/665/EEC and Directive 92/13/EEC, mainly to extend their scope of application
with regard to concessions. However, the deadline to turn Directive 2014/23/EU into
national law elapsed on 18 April 2016, so its impact is not addressed in this evaluation,
except for the aspect of coherence of the new legislative package on public procurement with
the Remedies Directives.
12
‘Communication from the Commission — Regulatory Fitness and Performance Programme (REFIT): results
and next steps’, COM(2013)685.
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3.
B
ACKGROUND
- T
HE
R
EMEDIES
D
IRECTIVES
The Remedies Directives require that decisions on contracts falling within the scope of the
Procurement Directives taken by contracting authorities/entities may be reviewed effectively
and as quickly as possible, on the grounds that such decisions have infringed the Procurement
Directives.
Most of the provisions in the Remedies Directives are mandatory and must be turned into
national law. Those mandatory provisions constitute ‘minimum
conditions to be satisfied by
the review procedures established in the national legal systems’
13
. Member States may
introduce conditions that go beyond those laid down in the Remedies Directives, for instance
by laying down similar or equivalent review procedures for public procurement under the EU
thresholds, by granting to organisations that do not act as economic operators (e.g. trade
associations) the right or capacity to bring an action or to appear before a court and by setting
longer time limits for applying for review.
However, there are a few provisions in the Remedies Directives that are optional and
therefore Member States may choose not to transpose them. Optional provisions are, for
example, the imposition on plaintiffs of the obligation to seek review first with the
contracting authority and the possibility for review bodies (if certain conditions are met) not
to declare a contract ineffective and impose instead alternative penalties.
Directive 89/665/EEC, covering the public sector, and Directive 92/13/EEC, covering the
utilities sector, are very similar in content. For the sake of simplification, any reference to
Directive 89/665/EEC (and to contracting authorities) is understood to also refer to Directive
92/13/EEC (and contracting entities) unless indicated otherwise.
3.1.
The founding Remedies Directives (Directives 89/665/EEC and 92/13/EEC)
The founding Remedies Directives did not intend to fully harmonise the remedies systems in
the area of public procurement. They laid down only ‘the
minimum conditions to be satisfied
by the review procedures established in domestic law to ensure compliance with the
requirements of EU law concerning public procurement’
14
. In fact, these Directives
constituted (and still do today) a rare example of constraints placed on the principle of
national procedural autonomy of Member States with a view to ensuring effective
enforcement of EU rules at national level. The Remedies Directives are therefore an essential
piece in the public procurement landscape and a unique example in EU law of giving full
effect to EU rights at national level.
The remedies to be provided by Member States under the founding Remedies Directives
included the powers to:
(a)
take, at the earliest opportunity and by way of interlocutory procedures, interim
measures to correct the alleged infringement or prevent further damage to the
interests concerned, including measures to suspend or to ensure the suspension of
the procedure for the award of a public contract or the implementation of any
procedural decision taken by contracting authorities;
either set aside or ensure the setting aside of decisions taken unlawfully, including
the removal of discriminatory technical, economic or financial specifications in the
(b)
13
14
Judgment of 27 February 2003 in case C-327/00,
Santex,
paragraph 47.
Judgment of the Court of Justice of 30 September 2010 in case C-314/09
Strabag AG,
paragraph 33.
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invitation to tender, the contract documents or in any other document relating to the
contract award procedure; and
(c)
award damages to persons harmed by an infringement.
Directive 92/13/EEC (for the utilities sector) also provided powers to take, at the earliest
opportunity, if possible by way of interlocutory procedures and if necessary by a final
procedure on the substance, measures other than those provided for in points (a) and (b) with
the aim of correcting any identified infringement and preventing injury to the interests
concerned i.e. making an order for the payment of a sum, in cases where the infringement had
not been corrected or prevented.
As far as interim measures
15
were concerned, the founding Remedies Directives only
specified that Member States could provide that the body responsible for review procedures
could take into account the probable consequences of interim measures for all interests likely
to be harmed, as well as the public interest, and could decide not to grant such measures
when their negative consequences could exceed their benefits. In particular, the Court of
Justice of the European Union ('the Court') made it clear that granting interim measures could
not be made conditional on bringing an action for annulment of the contested act
16
.
As far as annulment is concerned, there were no further provisions in the Remedies
Directives on this issue except for the provision that specified that Member States could
provide that where damages were claimed on the grounds that a decision was taken
unlawfully, the contested decision had first to be set aside by a body having the necessary
powers. How the remedy of setting aside of contracting authorities’ decisions operated
depended on national implementing measures.
The conditions for the award of damages also depended on national provisions. Directive
92/13/EEC only specified that ‘where
a claim is made for damages representing the costs of
preparing a bid or of participating in an award procedure, the person making the claim shall
be required only to prove an infringement of Community law in the field of procurement or
national rules implementing that law and that he would have had a real chance of winning
the contract and that, as a consequence of that infringement, that chance was adversely
affected’.
The equivalent provision did not exist in Directive 89/665/EEC. Nonetheless, in its
judgments in cases C-275/03 and C-70/06
Commission v Portugal
and C-314/09
Strabag,
the
Court held that it was not possible for Member States to require proof of culpability as a
precondition for an award of damages.
Under the founding Remedies Directives, Member States had also a wide discretion to decide
which bodies would be responsible for hearing public procurement cases in first instance.
Such bodies could be either judicial or not judicial in character. There were provisions in the
founding Remedies Directives that guaranteed that when bodies responsible for review
procedures were not judicial in character, written reasons for their decisions had to be given
and there had to be the possibility of an appeal to a court (or to another independent body that
is a court or tribunal within the meaning of Article 267 of the Treaty on the Functioning of
the European Union –TFEU).
The founding Remedies Directives also guaranteed that review procedures were available, at
least, to any person having or having had an interest in obtaining a public contract who has
been or risks being harmed by an alleged infringement.
15
16
Interim measures provided for the suspension of an award procedure prior to the conclusion of the contract.
Judgment of 19 September 1996 in case C-236/95
Commission v. Greece.
15
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Furthermore, the founding Remedies Directives laid down a corrective mechanism that
allowed the Commission to notify a Member State before the conclusion of a given contract
when it considered that there had a been a clear and manifest infringement of EU public
procurement law during the award procedure of that contract. The Commission had to state
the reasons of the alleged breach and the Member State concerned had 21 calendar days to
reply to the Commission. In any event, this corrective mechanism did not in practice oblige
the Member State concerned to suspend, correct or cancel the award procedure. The
Commission only exceptionally used the corrective mechanism. The case-law of the Court
confirmed that such corrective mechanism was an option at the disposal of the Commission,
which could even be used in paralel to an infringement procedure, but was not a pre-requisite
for or a replacement of an infringement procedure.
17
3.2.
Directive 2007/66/EC
The Commission proposed the modernisation of the founding Remedies Directives following
extensive consultations on their functioning with all major stakeholders, including Member
States, contracting authorities, businesses, lawyers and professional associations. Both the
consultations and the case-law of the Court revealed a certain number of weaknesses in the
review mechanisms established by the founding Remedies Directives.
18
As a result of these consultations
19
, two key weaknesses were identified in the founding
Remedies Directives:
1)
the absence of a period allowing an effective review between a decision to award a
contract and the conclusion of the contract in question. This resulted in ‘the race to
signature’: contracting authorities who wished to make irreversible the consequences
of the disputed contract award decision proceeded very quickly to the signature of
the contract.
Second, it was impossible under the founding Remedies Directives to challenge
illegal direct awards of public contracts, which are the most serious breaches of EU
law in the area of public procurement.
2)
The purpose of modernising the founding Remedies Directives was therefore to improve the
effectiveness of review procedures concerning the award of contracts and to ensure better
compliance with EU law, especially at a time when the breaches can still be corrected. To a
large extent, the concrete proposals codified the case-law of the Court in this area.
Directive 2007/66/EC aimed to increase guarantees of transparency and non-discrimination
and to open up public procurement to EU-wide competition, in line with the overall
objectives of the Procurement Directives (i.e. to achieve best value for money). As mentioned
in its recital 36, Directive 2007/66/EC sought to ensure full respect for the right to an
effective remedy and to a fair hearing, in accordance with Article 47 of the Charter of
Fundamental Rights of the European Union. As the Court subsequently stated:‘Directive
Judgment of 24 January 1995 in case C-359/93,
Commission v Netherlands,
paragraphs 8 and 11-13.
A list of relevant case-law on remedies can be found in Annex 1.
19
As described in Section 3 of the Impact Assessment, the consultations included seeking the opinion of two
Advisory committees, direct consultation using the Commission's Interactive Policy Making tool (IPM),
consultation of enterprises belonging to the European Business Test Panel (EBTP) and on-line questionnaires
for awarding authorities.
17
18
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89/665 gives specific expression to the general principle of EU law enshrining the right to an
effective remedy in the particular field of public procurement’
20
.
While maintaining the guarantees introduced by Directives 89/665/EEC and 92/13/EEC
explained above, Directive 2007/66/EC introduced the following key elements which are
described in detail in the subsequent sections:
(a) an automatic debrief at the time of the contract award decision and a ‘standstill
period’;
(b) time limits for pre-contractual remedies;
(c) an automatic suspension of the contract award procedure where legal proceedings
are brought against contracting authorities’ award decision;
(d) the sanction for ‘ineffectiveness’;
(e) time limits for ‘ineffectiveness’; and
(f) alternative penalties.
Finally, Directive 2007/66/EC adjusted the corrective mechanism to clarify that the
infringement of EU public procurement law does not need to be considered ‘clear and
manifest’ but rather ‘serious’. This refocus was the consequence of the strengthening of the
effectiveness of national review procedures, in order to encourage those concerned to make
greater use of the possibilities for review by way of interlocutory procedure before the
conclusion of a contract.
21
3.2.1.
Automatic debrief and ‘standstill period’
Before the adoption of Directive 2007/66/EC, contracting authorities were in a position to
ensure that a disputed contract award decision was irreversible and that the only remedy
available was damages. It sufficed to sign a contract at the moment of the award decision or
right after without waiting for this decision to be challenged.
In its judgment of 28 October 1999 in case C-81/98,
Alcatel,
the Court ruled that ‘Member
states are required to ensure that the contracting authority’s decision prior to the conclusion
of the contract as to the bidder in a tender procedure with which it will conclude the contract
is in all cases open to review in a procedure whereby an applicant may have that decision set
aside if the relevant conditions are met, notwithstanding the possibility, once the contract has
been concluded, of obtaining an award of damages’.
22
In its judgment of 24 June 2004 in case C-212/02,
Commission v Austria,
the Court decided
that an effective remedy presupposes first, an obligation to inform tenderers of the award
decision and second, that it was possible for the unsuccessful tenderer to examine in
sufficient time the validity of the award decision. As the Court ruled, ‘a
reasonable period
must elapse between the time when the award decision is communicated to unsuccessful
tenderers and the conclusion of the contract in order, in particular, to allow an application to
be made for interim measures prior to the conclusion of the contract’
23
.
Order of 23 April 2015 of the Vice-President of the Court of Justice in case C-35/15 P(R),
Vanbreda,
paragraph 28. Furthermore, Article 47 of the Charter applies even to public contracts and concession contracts
that are not covered by the Remedies Directives, provided that they have a certain cross-border interest.
21
Recital 28 of Directive 2007/66/EC.
22
See paragraph 43 of the judgment.
23
See paragraph 23 of the judgment.
20
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The Court did not specify however any conditions for implementing these rules. These were
clarified by Directive 2007/66/EC. Article 2a, paragraph 2, of Directive 89/665/EEC makes it
clear that ‘a
contract may not be concluded following the decision to award a contract before
the expiry of a period of at least 10 calendar days with effect from the day following the date
on which the contract award decision is sent to the tenders and candidates concerned if fax
or electronic means are used or, if other means of communication are used, before the expiry
of a period of either at least 15 calendar days with effect from the day following the date on
which the contract award decision is sent to the tenderers and candidates concerned or at
least 10 calendar days with effect from the day following the date of the receipt of the
contract award decision’.
This provision clarifies also that the communication of the award decision to each tenderer
and candidate concerned must be accompanied by a summary of the relevant reasons and a
precise statement of the exact standstill period applicable.
Based on the same provision, Member States may provide that the standstill period does not
apply in cases where no publication of contract notice is required, there are no concerned
candidates or in specific cases concerning contracts based on framework agreements or
specific contracts based on a dynamic purchasing system (‘DPS’).
3.2.2.
Time limits for pre-contractual remedies
Following the modifications introduced by Directive 2007/66/EC, Article 2c of Directive
89/665/EEC states that where a Member State provides that any application for review of a
contracting authority's decision taken in the context of a contract award procedure falling
within the scope of Directive 2004/18/EC must be made before the expiry of a specified
period, time limits for applying for pre-contractual remedies shall be at least 10 calendar days
(or 15 calendar days if means of communication other than fax or electronic means are used)
with effect from the same triggering events as for the standstill period.
3.2.3.
An automatic suspension
According to Article 2, paragraph 3, of Directive 89/665/EEC, as modified by Directive
2007/66/EC, ‘when
a body of first instance which is independent of the contracting authority,
reviews a contract award decision, Member States shall ensure that the contracting authority
cannot conclude the contract before the review body has made a decision on the application
either for interim measures or for review. The suspension shall end no earlier than the expiry
of the standstill period’.
Member States have the choice as to whether the automatic
suspension should continue at the stage of the second instance review. Furthermore, for
reasons of
effet utile,
in some Member States the automatic suspension can be lifted by a
body of first instance under the specific conditions established by Member States which, in
particular, include the balancing of interests likely to be harmed and the public interest.
3.2.4.
Ineffectiveness
The remedy of ineffectiveness was introduced in particular to tackle illegal direct awards
which are considered by the Court ‘the
most serious breach of Community law in the field of
procurement’
24
. This remedy also codifies the case-law.
25
24
25
Judgment of 11 January 2005 in case C-26/03,
Stadt Halle,
paragraph 37.
Judgment of 10 April 2003 in joint cases C-20/01 and C-28/01,
Commission v Germany,
and judgment of
18 July 2007 in case C-503/04,
Commission v Germany.
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Article 2d, paragraph 1, of Directive 89/665/EEC enumerates three situations in which
ineffectiveness applies:
(i)
(ii)
illegal direct awards;
an infringement of the standstill period or the automatic suspension if this
infringement has deprived the tenderer of the possibility to pursue pre-contractual
remedies, where such an infringement is combined with an infringement of
substantive public procurement rules and if that infringement has affected the chances
of the tenderer to obtain the contract; and
in cases where Member States have invoked the derogation from the standstill period
for contracts based on a framework agreement or a DPS, where there is an
infringement of the second indent of the second subparagraph of Article 32(4)
26
or of
Article 33(5) or (6)
27
of Directive 2004/18/EC.
(iii)
Article 2d paragraph 2 of Directive 89/665/EEC stipulates that the consequences of a contract
being considered ineffective must be provided by national law. National law might thus
provide for the retroactive cancellation of all contractual obligations or limit the scope of
cancellation to these obligations which still have to be performed. In the latter case, Member
States must provide for alternative penalties.
Article 2d, paragraph 3, of Directive 89/665/EEC allows Member States to provide that the
review body may not consider a contract ineffective, if the review body finds that overriding
reasons relating to a general interest require that the effects of the contract should be
maintained. In this case, alternative penalties are instead applied.
Pursuant to Article 2d, paragraph 4, of Directive 89/665/EEC, Member States may also
provide that the sanction of ineffectiveness will not apply if the following conditions are met:
(i)
the contracting authorities consider that the award of a contract without a prior
publication of a contract notice in the Offical Journal of the European Union / Tenders
Electronic Daily (OJEU/TED) is permissible in accordance with Directive
2004/18/EC and Directive 2004/17/EC;
contracting authorities publish in the OJEU/TED a voluntary ex ante transparency
notice (‘VEAT’) expressing its intention to conclude the contract; and
(ii)
26
According to the second indent of the second subparagraph of Article 32(4) of Directive 2004/18/EC,
‘Contracts based on framework agreements concluded with several economic operators may be awarded (…)
where not all the terms are laid down in the framework agreement, when the parties are again in competition
on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other
terms referred to in the specifications of the framework agreement, in accordance with the following
procedure: (a) for every contract to be awarded, contracting authorities shall consult in writing the economic
operators capable of performing the contract; (b) contracting authorities shall fix a time limit which is
sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as
the complexity of the subject-matter of the contract and the time needed to send in tenders; (c) tenders shall be
submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has
expired; (d) contracting authorities shall award each contract to the tenderer who has submitted the best tender
on the basis of the award criteria set out in the specifications of the framework agreement’.
27
According to Article 33(5) of Directive 2004/18/EC, ‘each specific contract must be the subject of an
invitation to tender. Before issuing the invitation to tender, contracting authorities shall publish a simplified
contract notice inviting all interested economic operators to submit an indicative tender, in accordance with
paragraph 4, within a time limit that may not be less than 15 days from the date on which the simplified notice
was sent. Contracting authorities may not proceed with tendering until they have completed evaluation of all
the indicative tenders received by that deadline’. Under Article 33(6) of the Directive, ‘contracting authorities
shall invite all tenderers admitted to the system to submit a tender for each specific contract to be awarded
under the system. To that end they shall set a time limit for the submission of tenders’.
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(iii)
contracting authorities do not conclude the contract before the expiry of a period of at
least 10 days with effect from the day following the date of the publication of this
notice.
28
Time limits for bringing an action for ineffectiveness
3.2.5.
According to Article 2f paragraph 1 of Directive 89/65/EEC, actions for ineffectiveness can
be lodged within:
(a)
30 days with effect from the day following the date on which contracting authorities
published a contract award notice (provided that it contains reasons for a direct award)
or the contracting authorities informed the tenderers concerned of the conclusions of
the contract (provided that this information contains a summary of the relevant
reasons); or
in other cases before the expiry of at least six months with the effect from the day
following the date of the conclusion of the contract.
Alternative penalties
(b)
3.2.6.
Article 2e, paragraph 1, of Directive 89/665/EEC provides for alternative penalties where
Member States might consider ineffectiveness to be inappropriate.
Alternative penalties can also be applied in an optional manner, for instance:
•
•
•
when the contract is not declared ineffective because of overriding reasons relating to
a general interest;
when ineffectiveness was declared only for those obligations which would still have
to be performed (ex
nunc);
and
in the case of infringements of the standstill period or the automatic suspension if that
infringement, for example, is not combined with an infringement of substantive
provisions.
Article 2e paragraph 2 of Directive 89/665/EEC specifies that ‘alternative
penalties must be
effective, proportionate and dissuasive’.
It can be either the imposition of fines on the
contracting authority or the shortening of the duration of the contract. Member States can
provide for both, the imposition of fines and the shortening of the duration of the contract.
The same provision allows Member States to confer on the review body broad discretion to
take into account all relevant factors, including the seriousness of the infringement, the
behaviour of contracting authorities and the extent to which the contract remains in force.
The same provision also makes it clear that the award of damages does not constitute an
alternative penalty.
28
In its judgment of 11 September 2014 in case C-19/13
Fastweb SpA
the Court of Justice held that the contract
may not be declared ineffective if the above-mentioned conditions are in fact satisfied, which it is for the
referring court to determine. In particular, the review body is under a duty to determine whether, when the
contracting authority took the decision to award a contract by means of a negotiated procedure without prior
publication of a contract notice, it acted diligently and whether it could legitimately hold that the award of a
contract without a prior publication of a contract notice in the OJEU/TED was permissible in accordance with
Directive 2004/18/EC and Directive 2004/17/EC.
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3.3.
Other aspects related to remedies
As seen above, the Remedies Directives are not exhaustive and they only provide for
minimum harmonisation, which Member States may adapt in the national legislation
transposing the Directives. Member States may also transpose some or all of their optional
provisions. Finally, beyond those aspects that are regulated in the Remedies Directives, other
aspects related to remedies such as costs and time limits for the duration of the review
procedures are relevant for the overall performance of the remedies systems in Member
States.
3.3.1.
Costs of proceedings
The Remedies Directives are silent about the costs of proceedings. Nonetheless, they require
Member States to take the measures necessary to ensure that decisions taken by contracting
authorities may be reviewed effectively. It is therefore indispensable to strike a balance
between, on the one hand, the right of public authorities to impose (if they choose to do so)
reasonable fees that cover actual administrative or judicial costs and deter frivolous litigation
and, on the other hand, the right of economic operators to have easy access to an effective
remedy.
Cases on court fees in the area of public procurement have been recently brought before the
Court in preliminary ruling proceedings.
In its judgment of 6 October 2015 in case C-61/14
Orizzone Salute,
the Court ruled that
Article 1 of Directive 89/665/EC and the principles of equivalence and effectiveness must be
interpreted as not precluding national legislation which requires the payment of court fees in
public procurement cases. In paragraph 58 of its judgment the Court considered that the court
fees which do not exceed 2 % of the value of the contract concerned are not liable to render
practically impossible or excessively difficult the exercise of rights conferred by EU public
procurement law.
Furthermore, in the same judgment, the Directive does not preclude the charging of multiple
court fees to an individual who brings several court actions concerning the same award of a
public contract or that individual from having to pay additional court fees in order to be able
to raise supplementary pleas concerning the same award of a public contract within ongoing
judicial proceedings.
However, in
Orizzone Salute
the national court is required to examine the subject-matter of
the actions submitted by an individual or the pleas raised by that individual within the same
proceedings. If it finds that the subject-matter of those actions is not in fact separate or does
not amount to a significant enlargement of the subject-matter of the dispute that is already
pending, it is required to relieve that individual of the obligation to pay cumulative court fees.
In its order of 7 April 2016 in case C‑495/14,
Tita,
the Court relied extensively on the
resoning developed in
Orizzone Salute
and found compatible with Directive 89/665/EEC fees
that amount to € 2 000 when the value of the contract is equal or inferieur to € 200 000, € 4
000 when the value of the contract is between € 200 000 and € 1 000 000 and € 6 000 when
the value of the contract exceeds € 1 000 000.
In its judgment of 15 September 2016 in case C-488/14,
Star Storage,
the Court found that
Directive 89/665/EEC, read in the light of Article 47 of the Charter of Fundamental Rights,
allows contracting authorities to require from applicants the constitution of a good conduct
guarantee, provided that it is refunded to the applicant whatever the outcome of the action.
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Finally, other costs of proceedings, such as those deriving from the legal representation
before review bodies, may also have an effect on the functioning of the national review
systems.
3.3.2.
Time-limit for the duration of the review procedures
According to Article 1, paragraph 1, of Directive 89/665/EEC, Member States are to take the
necessary measures to ensure that decisions made by contracting authorities may be reviewed
effectively and, in particular, as rapidly as possible. One of the major elements that might
impact the effectiveness of the rules on remedies is the time it takes to obtain a decision. It is
in interest of both the contracting authority and economic operator to obtain a quick decision.
Notwithstanding this, the review procedures should allow at least for the assessment of the
legal elements of the case.
4.
4.1.
E
VALUATION
—
GENERAL ASPECTS
Intervention logic
The overall dynamics of various provisions foreseen under the Remedies Directives may be
presented in a simplified form in an intervention logic model, which is shown in Figure 1.
Figure 1: Intervention logic model
Source: ‘Economic
efficiency and legal effectiveness of review and remedies procedures for public contracts’,
Europe Economics and
Milieu, April 2015
Based on the diagram above, the Remedies Directives (‘Input’) stem from the need to deter
non-compliant behaviour and to improve the effectiveness and efficiency of public
procurement rules. These rules must be understood within the general objectives of
facilitating the freedoms of the single market and rationalising public spending
(‘Objectives’). Following the transposition of Directive 2007/66/EC, Member States
introduced the various measures listed under (‘Activities’) to allow challenges before national
review bodies.
The initiative entered into force and produced direct results (‘Outcomes ’). These can be
observed in the form of use of the appeal provision, which can lead to challenging a given
decision or even suspending a procurement outcome or imposing penalties. The desired
impact of the Remedies Directives is to make the procurement process more open, fair
transparent and competive, and to increase non-domestic contracts awarded while trying to
22
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avoid additional effects such as an excessive amount of unnecessary actions (‘Intermediate
impact’).
The remedy actions incur costs for market players and contracting authorities. It must be
however kept in mind that most of these costs are not imposed by the Remedies Directives
themselves. Finally, within the freedom to undertake the remedy action it may be possible
that there are also some additional or side effects in the form of ‘nuisance’ or unnecessary
actions being brought forward. The intermediate impacts, less the potential additional effects,
are expected to lead to final benefits in the form of procurement outcomes that reflect better
value for money (‘Impacts’).
4.2.
Evaluation criteria and evaluation questions
The evaluation of the Remedies Directives has been carried out paying particular attention to
the following evaluation criteria and questions in order to guide the analysis of the
Directives’ functioning:
•
Effectiveness:
o
Have the Remedies Directives been effective in meeting, or moving towards,
the defined objectives? To what extent do the Directives contribute to
transparency, fairness and openness of the market?
o
What factors influenced the achievements observed? (e.g. to what extent are
the various provisions envisaged in the Remedies Directives being used, in
particular in relation to the use of complaints, appeals and damages?) Are
there factors which are hindering this effect?
•
Efficiency:
What are the main costs and benefits of the Remedies Directives for
contracting authorities and economic operators? Are there significant differences in
costs or benefits between Member States? Does it create administrative burden? To
what extent is the system being used unnecessarily? Do the benefits of the Directives
outweigh their costs? Could the same benefits have been achieved at a lower cost?
Relevance:
Are the objectives of the Remedies Directives still relevant today? How
has the original need for intervention evolved in recent years? In particular, is there
any reason to believe that the initiative is no longer justified or that alternative
provisions or soft measures are needed?
Coherence with other policies:
To what extent are the Remedies Directives
consistent with each other, with the substantive public procurement rules and with
regulatory measures adopted for the purposes of other policy objectives at EU and
national level?
EU added value:
What is the ongoing added value of EU legislation in this field?
What would be the effects if the Remedies Directives were to be withdrawn and
Member States were free to adjust their national regulatory frameworks? Would these
benefits have been achieved in the absence of the Directives?
•
•
•
The main focus of the evaluation is whether the Remedies Directives contribute to better
enforcement of substantive public procurement legislation at national level.
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5.
M
ETHODOLOGY
In December 2013, Directorate General for Internal Market, Industry, Entrepreneurship and
SMEs (or DG GROW)
29
launched an evaluation of the amendments introduced to the
Remedies Directives by Directive 2007/66/EC, announced in the Commission's
Communication 'Regulatory Fitness and Performance (REFIT): Results and Next Steps'
30
.
This evaluation formed part of the Commission’s Agenda Planning
31
and Work Programme.
32
As already explained, the main goal of this evaluation was to assess the functioning of the
Remedies Directives, i.e. whether they have been efficient, effective, coherent, relevant and
whether there is an added value at the EU level.
In order to reach the above objectives, the following sources were used in this evaluation:
•
the Study ‘Economic
efficiency and legal effectiveness of review and remedies
procedures for public contracts’
(‘'the Study’), commissioned to an external
consultant
33
(information and data used in the Study were mainly collected through
stakeholder interviews, contracting authority interviews, case studies and market data
collection; as part of its task, the consultant also carried out surveys);
a number of consultations described in detail in Annex 2 – synopsis report of
consultation activities, namely: an open online public consultation, targeted
consultations with Member States and with experts and practitioners in public
procurement litigation; and
review of national legislation and case-law.
•
•
Furthermore, in line with the evaluation guidelines, an inter-service steering group was
created to gather a broader view from other Commission departments. The inter-service
steering group was composed, in addition to DG GROW, of the Commission’s Secretariat-
General, the Legal Service, DG Justice and Consumers, DG Environment and DG Regional
and Urban Policy. The group was consulted on various important aspects for the evaluation
process.
One of the difficulties encountered in the evaluation related to data gathering, which made it
a challenge to assess the achievement of the objectives to date. For example, in some cases
(e.g. evidence of the indirect deterrent effect of the Remedies Directive), the results were
related to only a small number of Member States, so it was difficult to generalise the findings
to the rest of the EU. Although the 'Impact Assessment Report – Remedies in the field of
Public Procurement' that preceded Directive 2007/66/EC already mentioned the need to
establish monitoring and evaluation system of remedies actions in Member States, this
system was never established as at that time the focus was on the transposition of Directive
2007/66/EC into national laws of Member States.
29
30
At the time of launching the evaluation: Directorate General for Internal Market and Services (DG MARKT).
COM(2013) 685 final.
31
2015/GROW/048.
32
COM(2014) 910 final.
33
Study "Economic
efficiency and legal effectiveness of review and remedies procedures for public contracts"
written by Europe Economics and Milieu, April 2015 (the ‘Study’):
http://ec.europa.eu/growth/single-market/public-procurement/modernising-rules/evaluation/index_en.htm
The Commission consulted Member States on the Study
via
the Commission Government Expert Group on
Public Procurement Committee. The Commission received comments from 16 Member States (Austria,
Germany, Finland, Estonia, France, Croatia, Hungary, Italy, Latvia, Lithuania, the Netherlands, Poland,
Slovenia, Slovakia, Sweden, the UK). Those comments were taken into account in the evaluation.
24
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Moreover, in most Member States, the information on the operation of review procedures in
the field of public procurement and more specifically on the complaints lodged by economic
operators in the field of public procurement is not collected in a structured manner. Details of
cases are not always publically available on online sites and, even when they are available,
they are not often presented in a suitable electronic format that enables interrogation,
collection and comparison of relevant data (such as dates, type of remedy sought, number of
decisions produced and OJEU identification number).
Notwithstanding these limitations, the evaluation was based on a review of best available
quantitative and qualitative evidence of causality between actions and effected changes. It
made extensive use of stakeholders' and experts' view as well as case studies on the
functioning of the different provisions of the Directives.
6.
I
MPLEMENTATION
—
STATE OF PLAY
34
Directive 2007/66/EC, with significant and widespread delays
35
, was fully transposed by all
Member States. National transposition measures notified to the Commission are listed in
Annex 5.
6.1.
First instance review bodies
Review bodies varying in nature have been established in each Member State: in some, there
are independent administrative review bodies, be they specialised or not, while in others, a
judicial body is responsible for the review. For details see Annex 6.
6.2.
The right to bring an action or to appear before a court
The
locus standi
differs across Member States. All Member States require the review
procedure to be available to persons having or having had an interest, and some specifically
provide that this includes operators not tendering (in the Czech Republic, Denmark, Hungary,
Ireland and Slovenia). However, a number of Member States also provide that other
undertakings are eligible to start a review procedure, which includes third parties (the Czech
Republic, Denmark and Portugal). In other jurisdictions this may also include professional
associations (Bulgaria, Denmark, Hungary and Poland), the Competition Authority (the
Czech Republic, Denmark, Sweden and Slovenia), the contracting authority or other
representatives of the State (France, Finland, Croatia, Hungary and Slovenia).
6.3.
Interim measures, set aside decisions and damages
In all Member States, provisions exist for the three compulsory types of remedies:
(1)
(2)
(3)
interim measures;
set aside decisions;
and damages.
The conditions for granting interim measures are comparable in Member States (a strong
prima facie
case, a balance of interest test). However, courts and review bodies in Member
States differ in their approaches to interim measures from adopting a very restrictive
34
To a large extent, this Chapter is based on Chapter 5 of the Study, completed with the comments received
from Member States on the Study (see footnote 32) and DG GROW’s internal research.
35
Infringement procedures were initiated against 20 Member States for non-communication of national
transposition measures. Most Member States completed the transposition during the year 2010.
25
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approach of hardly ever granting interim measures (e.g. Denmark, Portugal) to a more liberal
one (e.g. Finland).
36
Member States vary considerably in their approaches to set aside decisions, depending on
their legal traditions. For instance, French courts look into possible breaches of any
procurement rules while the UK courts focus on major breaches.
37
Accordingly, the relevant
grounds for annulment, the extent to which contracting authorities’ decisions are reviewed
and the scope and effects of annulment are specified in national laws.
As far as damages are concerned, divergent solutions are adopted by Member States, in
particular, on the issue of causation or recoverable losses. As far as causation is concerned,
some legal systems require a ‘certain casual’ link (Nordic countries); others, the balance of
probabilities (Ireland), a serious chance (France) or a 'real and substantial chance' of being
awarded a contract (the UK).
38
As far as recoverable losses are concerned, in the Nordic and
German systems the recovery of the loss of profits is exceptional whereas latin countries rely
more on corrective and dissuasive effect of damages.
39
Judges from supreme administrative
courts in the EU, during a meeting organised on 22-23 October 2015 in Helsinki, considered
that the right to damages lacked a sufficient level of harmonisation at EU level.
6.4.
Automatic debrief and ‘standstill period’
In general terms, Member States apply the minimum standstill period, as required by the
Remedies Directives (i.e. 10 or 15 days, depending on the means of communication used).
In a number of cases, a longer standstill period has been specified. For example, in Bulgaria
and Estonia the standstill period is 14 calendar days from notification of the
candidates/participants in the public procurement procedure, while in Ireland it is a minimum
of 14 calendar days if sent by fax or electronic means and 16 days if sent by other means. In
Finland the standstill period is 10 days from the receipt of the decision only if a DPS is used,
with the longer period of 21 days from the receipt of the decision applying in all other cases.
The longest standstill period applies in Italy, where a period of 35 days applies from the date
of the last communication of the contract award decision.
Over half of the Member States
40
have made use of the option to derogate from the standstill
period and have applied the derogation in all three cases specified in the Remedies
Directives
41
. In a further eight Member States, the derogation has been used in one or two of
the cases specified in the Remedies Directives. Only four Member States (Austria, Greece,
Malta and Slovakia) have opted not to make use of the derogation at all, and therefore apply
the standstill period set in their countries in all cases.
36
R. Caranta, General Report, Public Procurement Law: Limitations, Opportunities and Paradoxes, The XXVI
FIDE Congress in Copenhagen, 2014, p. 165.
37
R. Caranta, ‘Many Different Paths, but Are They All Leading to Effectiveness?’, in: S. Treumer, F. Lichère
(ed.), ‘Enforcement of the EU Public Procurement Rules’, DJOF Publishing Copenhagen, 2011, p. 69-69.
38
R. Caranta, ‘Damages for Breaches of EU Public Procurement Law. Issue of Causation and Recoverable
Losses’, in: D. Fairgrieve, F. Lichère (ed.), ‘Public Procurement Law. Damages as an Effective Remedy’, Hart
Publishing, 2011, p. 176.
39
Ibidem, p. 184.
40
BE, BG, CY, DK, FI, HU, IE, LI, LU, LV, NL, PT, RO, SE, SI and UK.
41
As already indicated in section 3.2.1, Member States may provide that the standstill period does not apply in
cases where no publication is required, there are no concerned candidates and in specific cases concerning
contracts based on framework agreements or specific contracts based on DPS.
26
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6.5.
Automatic suspension
With regard to the period of suspension of the contract award procedure, in almost half of the
Member States, the period of suspension applies until a decision is taken on application for
interim measures
42
. In over half of the Member States the period of suspension applies until a
decision is taken on the application for review (i.e. on the merits of the case)
43
, whereas in the
vast majority of Member States the suspension can also be brought to an end at an earlier
stage. For example, in the UK, courts may make an interim order bringing to an end the
suspension of the contract award procedure. In eight Member States (Bulgaria, the Czech
Republic, Finland, Ireland, Malta, Slovenia, Slovakia and UK), the period of suspension can
apply until a decision on appeal against the first instance decision or longer.
6.6.
Ineffectiveness
All Member States provide for ineffectiveness where a contracting authority has awarded a
contract without prior publication of a contract notice in the OJEU/TED without this being
permissible in accordance with the Procurement Directives.
Moreover, Member States provide for ineffectiveness where certain infringements have
deprived the tenderer applying for review of the possibility to pursue pre-contractual
remedies. Examples of infringements which can lead to a declaration of ineffectiveness in
this case include cases where the award of the contract was not in compliance with the
information contained in the contract notice, where the procurement procedure was
withdrawn unlawfully or where there was a breach of the standstill provisions.
Over half of the Member States
44
also consider a contract ineffective if the Member State has
invoked the derogation of the standstill period for contracts based on a framework agreement
or a DPS and an infringement occurs.
Two Member States (Slovenia and Slovakia) also refer to ‘other’ specific grounds for
ineffectiveness, which include failure by the contracting authority to provide the court with
the complete documentation of the tender (Slovakia), and where the contract was concluded
as a consequence of a criminal offence committed by the contracting authority or by the
successful tenderer (Slovenia).
Most Member States allow either the cancellation of all contract obligations or the
cancellation of only those contract obligations that are still to be performed, with the
exception of Spain, which only provides for the cancellation of all contract obligations.
The majority of Member States transposed the provisions on the VEAT notice, which, if
specific circumstances are fulfilled, allows the contracting authorities to avoid the sanction of
ineffectiveness. Based on the information available in the OJEU/TED, the use of this notice
remains relatively stable since 2010 with around nine to ten thousands notices of this kind
published every year.
(see Figure 2 below).
42
43
AT, BE, CY, CZ, EL, HR, IE, IT, LT, NL, PT, SE and UK.
BG, CZ, DE, DK, ES, FI, FR, HR, HU, IE, LU, LV, PL, RO, SE and UK.
44
AT, DK, EL, ES, FI, HR, HU, IE, LT, LU, LV, PL, RO, SE, SI and UK.
27
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Figure 2: The number of VEAT notice published in OJEU/TED by year 2009-2015
Source: OJEU/TED
Based on TED data, since the deadline for transposition of Directive 2007/66/EC, there were
more than 57 000 notices published across the EU-28. The majority of VEAT notice usage
was by France (37 226 notices), followed far behind by Poland (5 453), the United Kingdom
(3 256) and Denmark (2 504). The least frequent notice usage was in Romania (1), Hungary
(4), Luxembourg (4) and Estonia (22).
Figure 3: The share of VEAT notices published in OJEU/TED 2009-2015 by country
Source: OJEU/TED
28
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Altogether, 10 countries
45
accounted for 95 % of the total VEAT notices published in the
period 2009-2015. This is shown in Figure 3 above. Further details on the OJEU/TED
publication levels are provided in Annex 7.
6.7.
Alternative penalties
Concerning alternative penalties, the majority of Member States transposed both fines and/or
the shortening of the duration of the contract. Details are specified in Annex 8.
However, alternative penalties are sporadically used in Member States. For example, in
Austria, since the transposition of Directive 2007/66/EC in 2009, alternative penalties have
overall been imposed in 20 to 30 cases. In Sweden, the Competition Authority must pursue
cases for alternative penalties when an administrative court has first decided that a contract
may remain valid, although it was awarded in breach of a standstill period. The Competition
Authority has had the power to pursue these cases since 2011 and so far there have been
around 60 non-mandatory applications and 30 mandatory applications for alternative
penalties.
6.8.
6.8.1.
Time limits for review
Pre-contractual remedies
The time limits for pre-contractual remedies laid down in Article 2c of Directive 89/665/EC
are 10 calendar days if electronic means or fax are used and 15 calendar days if other means
of communication are used. In both cases, these time limits apply with effect from the day
following the date in which the decision is sent to the tenderer or candidate. If the application
concerns a decision that is not subject to a specific notification, the time limit shall be at least
10 calenday days from the date of its publication. In the majority of Member States the time
limits follow the structure of the Remedies Directives and thus lay down time limits that
mirror the minimum standstill period. In some cases, such as the UK, a longer period of up to
30 days is set.
6.8.2.
Ineffectiveness
In cases of ineffectiveness, Article 2f of Directive 89/665/EC provides that an application for
review must be made before the expiry of at least 30 calendar days. This takes effect from the
day following the date on which the contracting authority published a contract award notice
or the day following the date on which the contracting authority informed the tenderers and
candidates concerned of the conclusion of the contract, and in any other case before the
expiry of a period of at least six months with effect from the day following the date of the
conclusion of the contract. Several Member States follow exactly the structure of the
Remedies Directives while some others do not foresee that both the publication and the
notification of the award decision trigger the start of the 30 days’ time limit. In any event, all
Member States lay down a six months’ time limit. An overview of the applicable time limits
is provided in Annex 9.
6.8.3.
Damages
The regime for the recognition of damages is not regulated by the Remedies Directives. It is
therefore for the Member States to lay down the detailed procedural rules governing actions
for damages, including time limits. Those detailed procedural rules must, however, be no less
45
DK, ES, FR, IT, AT, PL, SI, SK, FI and UK.
29
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favourable than those governing similar domestic actions (principle of equivalence) and must
not render practically impossible or excessively difficult the exercise of rights conferred by
EU law (principle of effectiveness).
46
For example, in the Netherlands, the standard limitation for legal claims of five years is
applied
47
. In Germany the time limit is three years from the end of the year in which the
damaged party has knowledge of both the damage and the identity of the tortfeasor. In
France, the prescription period is governed by the
prescription quadriennale.
The time limit
starts to run from the first day of January following the claimant’s becoming aware of the
violation.
48
In the preliminary ruling in case C-166/14
MedEval,
the Court ruled that national legislation
(in this case, Austrian) cannot make an action for damages conditional upon a prior
declaration of ineffectiveness when the latter is subject to a six-month limitation period even
when the award is not given publicity. The Court considered that such limitation would
render impossible or extremely difficult to bring an action for damages.
7.
A
NSWERS TO THE EVALUATION QUESTIONS
It is important to remind that the amendments introduced by Directive 2007/66/EC ensure
only minimum harmonisation. The Remedies Directives leave Member States discretion in
the choice of review procedures and the formalities. Moreover, the Remedies Directives also
contain several optional provisions as explained above. In the light of this, the remedies
process varies from Member State to Member State according to how the Remedies
Directives have been implemented and enforced in national law, and more fundamentally, to
how effective the administrative and judicial systems are. In general, Member States have
used the discretionary powers conferred on them in the Remedies Directives to go beyond
their minimum requirements.
As a result, the implementation of rules on remedies in the public procurement area varies
considerably across different Member States. One of the major challenges in the context of
the present evaluation is therefore to distinguish the outcomes directly associated with the
Remedies Directives from those that stem from national implementing measures and national
approaches to enforcement.
It is equally challenging to measure the deterrence effect of the Remedies Directives which is
correcting any illicit practice before such a practice can be observed and working through the
credibility of the system. It can be assumed that as long as there are no major deficiencies in
the system established by the Remedies Directives, their deterrence effect is present.
7.1.
7.1.1.
Effectiveness
Actual usage of the provisions
The first and most important indicator of the effectiveness of the Remedies Directives is the
actual usage of provisions provided therein, especially as far as the newly introduced
provisions are concerned (e.g. the usage of VEATs). Some key data about the actual uptake
of the new provisions were presented in section 6. As previously explained, the majority of
Member States transposed provisions on the VEAT notice and, based on the information
See judgment of the Court of Justice of 26 November 2015 in case C-166/14
MedEval,
paragraph 37.
H. Schebesta, ‘Towards
an EU law of Damages. Damages claims for violations of EU public procurement
law before national and European judges’,
doctoral thesis, EUI Florence, p. 113.
48
Ibidem,
p. 148.
46
47
30
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available in the OJEU/TED, the use of this notice remains relatively stable since 2010 with
around nine to ten thousands notices of this kind published every year (see: Figure 3 above).
Referring to the frequency of remedy decisions, the Study indicates that there were around
50 000 first instance decisions across Member States during the period 2009-2012, with more
than 20 000 coming from Sweden (11 144) and Poland (10 570). While no other Member
States approach the numbers of these two countries, Croatia (6 939) and Bulgaria (4 411) also
have a considerable number of decisions (see tables 1 and 2 below
49
).
Table 1: Number of decisions by Member State and year in 2009-2012
50
MS
AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HR
HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
UK
Total
254
1 985
16
225
1 990
392
189
5
11 265
1 374
598
1
69
235
18
901
2009
253
138
1 224
111
508
1 275
75
193
-
-
610
2010
204
160
1 072
130
511
1 065
99
208
~207
~441
587
6
1 810
673
1
91
413
8
835
5
279
2 823
18
401
3 156
419
284
13
13 461
2011
241
192
1 146
73
710
989
201
224
~207
~441
569
16
1 888
688
11
180
409
10
1 019
83
271
2 820
30
619
2 960
537
314
16
14 328
2012
234
221
969
66
1 049
893
205
254
~207
~441
425
18
1 867
460
8
0
353
3
1 020
152
307
2 942
22
427
3 038
516
472
13
14 067
Total
932
711
4 411
380
2 778
4 222
580
879
~621
~1
323
2 191
40
6 939
2 419
21
340
1 410
39
3 775
240
1 111
10 570
86
1 672
11 144
1 864
1 259
47
55 064
Review of case-law.
Number of decisions only for Member States where information was available.
~ indicates approximate figure.
49
In the context of the preparation of the Study, it was difficult to obtain data about the number of decisions in
some Member States (Table 1 presents the data obtained, covering the years 2009-12). As indicated in
footnote 28 above, the Commission also consulted Member States and it received data from some of them
about the number of decisions (which is presented in Table 2, covering the years 2012-2014).
Study, Table 6.2 (p. 83).
50
31
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Table 2: Number of decisions by Member State and year in 2012-2014
MS
AT
DE
EE
FI
FR
HR
HU
IT
LT
LV
NL
PL
SE
SI
SK
UK
614
115
2 873
3 265
516
484
No data available
1 729
695
3 281 (data for first and
second instance)
2012
281
893 cases (332 decisions)
272 cases (48 decisions)
425
2013
229
817 cases (284 decisions)
287 cases (39 decisions)
450-500
6 042
2 135
572
3 165 (data for first and
second instance)
Information for 2012-2014:
990 cases
567
No data available
3 055
3 201
545
411
No data available
550
115
2 835
3 508
354
403
No data available
1 315
986
3 518 (data for first and
second instance)
2014
348
751 cases (297
decisions)
331 cases (65 decisions)
611
Source: information provided by Member States (those not included in the table did not provide
data).
During the same period, there were also 10 103 second instance decisions made (for Member
States where information was available
51
). Out of the Member States with available
information, Romania and Sweden had the highest numbers (2 231 and 2 386, respectively).
For details see Annex 12.
Information on the number of third instance decisions was available for only three Member
States (Estonia, Lithuania and Sweden). Out of the total 800 decisions, 686 came from
Sweden with Estonia and Lithuania having significantly fewer cases. For details see Annex
13.
The Study points to the fact that the most frequently type of remedy sought is set aside
decision, followed at a distance by interim measures and the removal of discriminatory
specifications. In the second instance review of the sample, a set aside decision is the most
used appeal by both applicants and contracting authorities, followed by discriminatory
specifications. A similar pattern is observed for third instance decisions. For details see
Annex 14.
51
CZ, CY, DE, DK, EE, HU, IE, LT, LU, RO, SE, SI.
32
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7.1.2.
Effectiveness in meeting the objectives
Evaluation questions to be answered:
Have the Remedies Directives been effective in
meeting, or moving towards, the defined objectives? To what extent do they contribute to
transparency, fairness and openness of the market?
Questions concerning the effectiveness of the Remedies Directives were asked to the
stakeholders in the context of the Study via two surveys that gathered 616 responses from
suppliers and 832 from contracting authorities, as well as further 112 responses from legal
practitioners. Their results reveal a general agreement with regard to the beneficial impact of
the Remedies Directives on the way public procurement procedures are implemented.
In the context of a Commission's public consultation, stakeholders were also asked whether
the Remedies Directives helped the public procurement process to become more transparent,
fairer, open, accessible and more compelling for compliance. The majority of respondents
agreed that the Remedies Directives have (fully or partially) improved the transparency of the
public procurement process (81 %) and helped to make the award procedure more open and
accessible (78 %) and fairer (80 %). This is presented in Table 3 to Table 5 below.
Table 3: Effectiveness of the Remedies Directives — transparency
Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs
Table 4: Effectiveness of the Remedies Directives — fairness
Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs
33
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Table 5: Effectiveness of the Remedies Directives — openness and accessibility
Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs
The respondents also agreed that the Remedies Directives helped the public procurement
process to become more compelling for contracting authorities to comply with the
Procurement Directives (82 % agreed or agreed partially).
Similar patterns emerge from the survey that was carried out for the purposes of the Study
and where a general appreciation of the rules on remedies prevailed among the two main
groups of respondents
52
(i.e. contracting authorities and economic operators, Figure 4).
In particular, about 71 % of contracting authorities in this survey took the position that the
Remedies Directives were effective in achieving its objectives. Over 60 % of public
respondents ‘agreed’ or ‘strongly agreed’ that the rules on remedies have helped to improve
the fairness of award procedures. As much as three quarters of the contracting authorities
responding to the survey were positive about the impact of the rules on remedies on
transparency in public procurement. The aspect of the Remedies Directives that was the least
valued by the contracting authorities consulted in the survey concerned their impact on the
openness of the award procedure — only a half of the participating contracting authorities
(49 %) noticed an improvement in this respect.
As far as the economic operators were concerned, their general appreciation of the Remedies
Directives was also pronounced, however to a lesser extent. Roughly 50 % of suppliers
‘agreed’ or ‘strongly agreed’ that the rules on remedies are an effective way for reviewing
and challenging the procurement decisions. Just over half of the respondents felt that the
provisions of the remedies have helped the public procurement process to become more
transparent. In terms of the fairness and openness of the market, only around respectively
38 % of suppliers ‘agreed’ and 35 % ‘strongly agreed’that the Remedies Directives have
helped to improve these aspects of the market. In general, around 30 % of suppliers were
neutral when replying to the questions posed.
52
See Section 6.4. of the Study.
34
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Figure 4: Perceptions of improvement of public procurement aspects
Source: Survey of suppliers and contracting authorities/entities by Europe Economics
53
Legal practitioners, who participated also in a separate survey in the context of the Study,
were more positive with respect to the success of the rules on remedies in all areas (Table 6).
Table 6: Legal practitioners’ perceptions of the impact of the remedies —percentage of respondents
Effective
Strongly agree
Agree
Do not know or Indifferent
Disagree
Strongly disagree
9%
74 %
11 %
6%
0%
Transparent
9%
74 %
8%
9%
0%
Fairer
4%
58 %
26 %
12 %
1%
More Open
4%
58 %
25 %
13 %
0%
Source: the Study, survey of legal practitioners by Europe Economics
In particular, 83 % of the legal practitioners that participated in the survey in the context of
the Study ‘agreed’ or ‘strongly agreed’ with the statements related to providing an effective
53
The questions formulated were:
‘The ‘Remedies’ are an effective way for reviewing and challenging procurement decisions?’
‘The ‘Remedies’ have helped the public procurement process to become fairer (all companies have the same
opportunities to bid for public procurement contracts)?’
‘The ‘Remedies’ have helped the public procurement process to become more open (there are fewer barriers to
companies participating in public procurement contracts, cross-border procurement is easier)?’
‘The ‘Remedies’ have helped the public procurement process to become more transparent (more information
is available to all companies about the details of public contracts, how they have been awarded, and how
parties may challenge decisions)?’
35
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way for the review and challenge of decisions and to improving the transparency of public
procurement. 62 % also ‘agreed’ or ‘strongly agreed’ that the Remedies Directives have
helped the public procurement process become fairer and more open. The legal practitioners’
survey also provided insight into views of the impact of the Remedies Directives on suppliers
taking action against contracting authorities in the event of a suspected breach of
procurement law.
7.1.3.
Factors affecting the effectiveness
Evaluation questions to be answered:
What factors influenced the achievements
observed? (e.g. to what extent are the various provisions envisaged in the Remedies
Directives being used? In particular in relation to the use of: complaints, appeals and
damages?) Are there factors which are hindering this effect?
a) The duration of the review procedures
One of the major elements that may impact the effectiveness of the rules on remedies is the
time it takes to obtain a decision.
According to the Study, in some Member States there are no legislative provisions on the
duration of the review procedures. Over half of Member States, however, specify a maximum
duration for review proceedings, including of administrative and, also in some cases, judicial
nature
54
.
The duration of review procedures carried out under the Remedies Directives were subject to
scrutiny within the Study, covering the interim measures, pre-contractual remedies in the
first, second and third instance. The length of the most frequently used review for pre-
contractual remedies in the first instance is provided in Figure 5.
54
According to the Study,
four Member States set a maximum duration of over 30 days (35, 42, 45 and 60 days
in DE, AT, CY and LT, respectively), the maximum period being 60 days/two months in Lithuania, as well as
in certain Lander in Austria. Eight Member States (BE, BG, CZ, EL, HR, HU, LV and SK) set a maximum
duration for the review procedure of 30 days. Two Member States (FR and RO) specify 20 days, while the
shortest period for review is found in Poland and Slovenia, where the review body is required to take a
decision within 15 days from the submission of the application for review.
36
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Figure 5: Estimated length of the review in first instance (pre-contractual remedies 2009-2012)
First pre-contractual
500
100
Length - days (median)
200
300
400
NO DATA
0
AT BE BG CY CZ DE DK EE EL ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK
Judicial
Non-judicial
Median
Note:
AT system is entirely judicial as of 2014, but was non-judicial for the period of analysis 2009-2012.
Statistics based on the following number of observations: AT: 62; BE: 118; BG: 118; CY: 119; CZ:
60; DE: 92; DK: 103; EE: 44; EL: 100; FI: 26; FR: 17; HU: 116; IE: 4; IT: 24; LT: 2; LU: 31; LV: 134; MT: 60;
NL: 37; PL: 164; RO: 116; SE: 18; SI: 114; SK: 109; UK: 7.
CZ — The total length is calculated by adding the duration of the initial application for review before
the Office for the Protection of Competition plus the duration of appeal to the Head of the Office.
ES — No data.
PT — No data.
Source: Review of case-law. Figure 6.7 of the Study, p. 88.
As the above Table from the Study shows, the length of first instance pre-contractual
remedies varies significantly across Member States. Moreover the review lengths appear to
be influenced by the type of first instance review body. A general trend shows that Member
States with a first instance administrative review body have the shorter review lengths, while
Member States where a judicial process need to be followed have the longest review lengths
(Belgium, Greece, Ireland, Luxembourg, Finland and the UK). This confirms the general
trend of effectiveness of the administrative review bodies over the judicial ones in first
instance pre-contractual remedies (for more details, see point b) below).
37
NO DATA
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1714470_0038.png
Figure 6: Dispersions of length of review in first instance (pre-contractual remedies 2009-2012)
First pre-contractual
AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
UK
0
1,000
2,000
Length (days)
3,000
4,000
Source: The Study, review of case-law; Member States with only one observation are not shown.
The lengths of the review proceedings to grant interim measures in first instance and to reach
a decision on the merits of the case in the context of pre-contractual remedies in second and
third instances, as identified by the Study, are provided in Annex 10. In general terms, it
appears that the first instance (interim measures) is the shortest on average and the second
and third instance reviews are the longest.
As far as data from the Commission's public consultation are concerned, it appears that in
first instance:
(i)
(ii)
review procedures concerning interim measures (which in most cases are initiated
before the award of the contract) most often take up to one month;
review procedures for the setting aside of decisions (which are also in most cases
initiated before the award of the contract) and those for ineffectiveness (which, in
turn, are initiated after the award of the contract) most often take between one and
three months; and
review procedures for damages (which are also initiated after the award of the
contract) most often take more than a year. For details see Annex 3 (summary of the
replies to question 3).
(iii)
Member States that replied to the Commission’s questionnaire do not identify any examples
of the remedy system causing delays in the award of public contracts or only exceptionally
identify such delays. None of the Member States that replied to the questionnaire identified
systematic abuses of appeals to the detriment of the timely functioning of their national
system. However, 40 % of respondents replied that the remedy system in their Member State
caused delays in the award of public contracts, 44.71 % replied that it happened only
occasionally and 11.18 % replied ‘No’. For details see Annex 3 (a summary of replies to
question 8).
38
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b) Administrative first instance review bodies v ordinary courts
As already outlined in the previous section, the duration of review procedure often depends
on whether the case is dealt by an administrative review body or an ordinary court. This has
been confirmed by a large majority of stakeholders, who consider that the type of review
body has an impact on time and/or standard for review (74.7 % of participants). In general
terms, procedures before the ordinary courts take longer. Strict time limits to deal with a case
can be imposed on administrative review bodies whereas they are not often imposed on
courts. Administrative review bodies with specialised functions also focus on public
procurement law and do not deal with other areas of law. This specialisation tends to result in
higher standards of adjudication. For details see Annex 3 (a summary of replies to question
5).
These findings are confirmed by the data gathered in the context of the Study which
demonstrates that review before the ordinary courts most often takes longer.
55
Based on data
provided by some Member States, the average length of review procedures in Member States
where ordinary courts adjudicate on public procurement matters in first instance is provided
in Figure 7 below.
Figure 7: Average length of review procedures in months (review before the ordinary courts)
Source: Targeted consultation with Member States; Directorate General for Internal Market, Industry,
Entrepreneurship and SMEs
To compare, the average length of review procedures in some of the Member States where
specialised administrative review bodies adjudicate is shown in Figure 8 (also based on data
provided by the Member States).
55
In France, however, judicial review appears to be fast.
39
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Figure 8: Average length of review procedures in months (review before administrative body)
Source: Targeted consultation with Member States: Directorate General for Internal Market, Industry,
Entrepreneurship and SMEs
In general, the number of appeals to first instance decisions taken by administrative bodies is
rather low. The success rate for appeals is also low, which can be interpreted as an indicator
proving the seriousness of the work carried out in first instance by the administrative review
bodies. For instance, in Poland the success rate of appeals in 2012 was 17 %; in 2013, 11 %;
and in 2014, 12 %. In Hungary, in 2012, 71.4 % of decisions reviewed were upheld by courts,
while only 0.7% of first instance decisions were altered; in 2013, 73 % of claims for appeal
were rejected and only 4.7 % of first-instance decisions were altered; in 2014, 73.7 % of the
claims for appeal were rejected and only 6.5 % of first-instance decisions were altered.
c) Costs of the proceedings
Another essential aspect of remedial action is the cost of the proceedings (i.e. application fees
and legal advocacy costs) taking into account that costs may be covered by the financial
compensation awarded in a very limited number of some specific types of review (i.e.
damages).
The fee for applying for a review differs across Member States. In some countries the
application fee for a review procedure is a fixed flat rate, irrespective of the characteristics of
the contract. In others, the costs are determined by a scale criteria or by a value-range that
depends on the size or the type of contract (for works, supply or services). Some Member
States have a percentage-based fee which is capped at a maximum value. The differences in
fee levels and structures is driven by a range of factors, such as the level of national
procedural autonomy, different systems and procedures or the existence of administrative
review bodies. A summary of the costs in the different Member States as identified in the
Study is shown in Annex 11. The wide disparities across counties are also clearly visible in
Figure 9 below. For each Member State the figure presents the levels of fees (marked on the
x-axis) for three exemplary contract values: EUR 250 000, EUR 1 million and EUR 10
million.
40
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1714470_0041.png
Figure 9: Dispersion of review fees within Member States (for contract values of EUR 250 000, EUR 1 million, and
EUR 10 million)
UK
SK
SI
SE
RO
PT
PL
NL
MT
LV
LU
LT
IT
IE
HU
HR
FR
FI
ES
EL
EE
DK
DE
CZ
CY
BG
BE
AT
100000
10000
15000
20000
40000
60000
80000
1m
5000
0
250k-10m
Cost in Euro
Source: The Study, research by network of legal experts
Specific questions on litigation costs, including fees, were asked in the Commission's public
consultation (questions 16 to 19 of the questionnaire). 37.65 % of respondents consider the
level of fees as ‘dissuasive’, while 50.59 % do not consider them as such. For example, many
participants from the UK indicated that the fee of up to £10 000 for commencement of
proceedings is clearly dissuasive
56
. However, in some Member States, access to review is free
(e.g. in Sweden, Latvia, France and Spain there is no fee to submit a complaint in first
instance).
Member States that replied to the Commission's questionnaire recognise that fees are a factor
to be taken into account by potential plaintiffs but they also help to ensure that only well-
founded cases are brought for review. In general, Member States do not consider that the fees
they impose have a dissuasive effect on economic operators to file complaints. Some Member
States are in the process of reforms to lower the amount of fees, whereas others consider
imposing higher fees in the future. The UK considers that minor breaches of public
procurement rules are effectively addressed via means such as their ‘Mystery Shopper’
scheme. This is a free option offered to economic operators whereby the Crown Commercial
56
In UK, the information gathered concerning the fee of £10 000 diverges substantially from data provided in
the Study and taken over in Figure 9.
41
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Service carries out an investigation with the contracting authority and makes
recommendations to resolve the matter and/or improve best practice for the future.
57
Several respondents to the Commission's public consultation – members of first instance
specialised administrative review bodies and some Member States – considered that it would
be useful to have further legal guidance concerning the fees in the area of remedies in public
procurement.
Finally, a large majority of respondents considered also that costs of legal advice and
representation have an impact on access to justice. Even if it is not always mandatory, in
particular in first instance, legal advice seems to be sought in most cases due to the
complexity of public procurement law. For details see Annex 3 (a summary of replies to
question 19).
d) Equal balance towards stakeholders
The effectiveness of the Remedies Directives can be also evaluated by the extent to which it
creates a system of checks and balances that makes them evenly equilibrated towards all
stakeholders.
Table 7: The interest of economic operators v contracting authorities
Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs
As shown in Table 7 above, 57.06 % of participants to the Commission's public consultation
considered that the Remedies Directive evenly balance the interest of economic operators in
ensuring the effectiveness of public procurement law and the interest of contracting
authorities in limiting frivolous litigation; 23.53 % indicated that the balance is too much on
the interest of economic operators; and 15.88 % pointed out that the balance is too much on
the interest of contracting authorities/entities.
These results confirm that the Remedies Directives are generally well balanced in addressing
the interests of all parties concerned. Based on this, it is plausible to conclude that the
Remedies Directives have established conditions for the remedies system to work effectively.
e) The clarity of the Remedies Directives
As explained above, the Remedies Directives ensure only the minimum harmonisation which
is necessary to guarantee the private enforcement of the Procurement Directives. Moreover,
as a result of the principle of national procedural autonomy, the Remedies Directives are not
as prescriptive as the substantive Procurement Directives. As a consequence, the provisions
of the Remedies Directives are formulated in a manner to cover the situation of Member
States with very different traditions in terms of administrative and procedural law.
57
For more information:
https://www.gov.uk/government/publications/mystery-shopper-scope-and-remit
42
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In the context of the Commission’s public consultation, several stakeholders underlined that
some provisions of the Remedies Directives could be more precise. In particular, more clarity
would be welcome in a number of areas related to institutional aspects (for example,
professional standards for members of an administrative review body), procedural aspects
(for example, criteria for lifting the automatic suspension, for granting interim measures and
to award damages) and the interplay between the Remedies Directives and the new Public
Procurement Directives (for example, how the Remedies Directives apply to the modification
and termination of public contracts and concessions and the so-called ‘light regime’).
f) National implementing measures and national approaches to enforcement
Contributions received during the Commission's public consultation also identified problems
that persist at national level and whose origin may not be found in the implementation of the
provisions of the Remedies Directives at national level. Various stakeholders confirmed that
some problems identified are rooted either in national legislation beyond the Remedies
Directives or in national practices rather than stem from the Remedies Directives. One
example of this is time-limits for seeking review that are significantly longer than those laid
down in the Remedies Directives, which in some cases may create undue delays to the
detriment of contracting authorities and successful tenderers. Other examples included in
particular: (i) a high number of complaints lodged due to the lack of court fees, (ii)
prohibitive court fees and cost of legal representation, (iii) too lengthy review procedures that
result from an insufficient allocation of human resources by Member States to allow the
proper functioning of the review system, (iv) the instances of non-enforceability of the review
decisions, (v) difficulties in ensuring consistency in the case-law of first instance review
bodies, (vi) the absence of effective remedies in procedures below the EU thresholds having a
cross-border interest and (vii) the application of restrictive conditions to grant interim
measures. For more details see Annex 3 (replies to question 20).
g) Data gathering
Data gathering related to national review procedures does not affect the effectiveness of the
Remedies Directives themselves. However, it prevents assessing the performance, including
the effectiveness, of the Directives. Indeed, data is essential to design consistent national
policies in the field of procurement review and for example to:
-
-
-
identify the resources needed or the abusive complaints;
analyse the consistency of decisions based on effective searching tools; and
enable the identification of contracting authorities/entities against which successful
complaints are lodged most often and of the aspects of procurement procedures which
are appealed against successfully.
During the assessment of the functioning of the Remedies Directives, it became apparent that
data on review procedures is often not readily available or even not available at all. The
difficulty to collect data related to review in the field of procurement (and to do so in a
comparable manner) first became clear during the preparation of the Study by the contractor
and subsequently in the Commission's consultation of Member States.
43
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7.1.4.
Deterrent effects of the Remedies Directives
As mentioned previously, when evaluating the effectiveness of the Remedies Directives two
different aspects need to be considered in parallel:
(i)
(ii)
the direct impacts of its implementation and usage; and
the indirect effects for the prevention of illegal practices in public procurement.
The first type of impacts has been addressed in the preceding sections of this staff working
document by discussing the implementation and the practical use of the Remedies Directives
across Member States. As far as the second type of effects is concerned, it occurs when the
Directives act as a deterrent to breaching EU public procurement laws because contracting
authorities perceive that there is reasonable risk of being challenged. Hence the Remedies
Directives serve to avoid illicit practices.
The assessment of the extent to which the provisions in the Remedies Directives are acting as
a deterrent to non-compliant behaviour of contracting authorities was one of the tasks for the
Study. The consultants approached it by testing a hypothesis that past complaints and their
associated costs incentivise contracting authorities to improve their behaviour in a manner
that results in a decreased probability of having a complaint lodged against them. Using a
sample of complaints and tender notices in OJEU/TED for four Member States (the Czech
Republic, Denmark, Slovenia and the Slovak Republic), the Study found that past complaints
had a statistically significant negative effect (of a small magnitude
58
) on the probability of
having a complaint lodged in the Czech Republic. This can be also linked to reputational
effects of complaints; many complaints against one contracting authority indicate potential
problems of compliance and may push that contracting authority to improve its procurement
practices. This effect, although only observed for one Member State in the limited sample,
pointed to the deterrent effect of the Remedies Directive in the particular context defined in
the hypothesis.
With regard to the corrective mechanism described in section 3.1 of this document, the
Commission has only exceptionally used it mainly due to its time constraints (the
Commission’s formal decision need to be adopted and notified before the conclusion of the
contract) and the strengthening of the remedies system by Directive 2007/66/EC. However,
the possibility of using the corrective mechanism gives leverage to the Commission during
investigations carried out during the award procedure and therefore may deter the contracting
authority or entity in question from concluding the contract and thus consummating the
alleged breach.
The measurement of the effectiveness of the remedies system in this aspect is however very
difficult as it consists of preventive impacts: i.e. the mere existence of the Remedies
Directives avoids breaches of EU public procurement law before they occur. The practical
effect of the deterrence role of the Remedies Directives is that fewer illicit practices can be
observed and hence fewer review decisions are requested. However, the importance of the
absence of complaints (i.e. the number of complaints that would have been lodged in the
absence of the Remedies Directives) cannot be reasonably estimated. Despite that lack of
quantification, the broadly understood deterrent effects of the Remedies Directives can be
indirectly inferred from:
(i)
(ii)
58
the overall uptake of the rules; and
the generally positive perceptions on its impacts.
See: section 6.5 of the Study.
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7.1.5.
Conclusions — effectiveness:
The Remedies Directives have generally met their objectives of: increasing the guarantees of
transparency and non-discrimination; allowing effective and rapid action to be taken when
there is an alleged breach of the Procurement Directives; and providing economic operators
with the assurance that all tender applications will be treated equally. The available data on
the actual usage of the provisions added further evidence on the effectiveness of the
Directive. In general, the remedies provided in the Remedies Directives were frequently used
in most of Member States. There were around 50 000 first instance decisions across Member
States during 2009-2012. The most frequently type of remedy sought is set aside decision,
followed at distance by interim measures and the removal of discriminatory specifications.
As far as the opinions of the stakeholders were concerned, a clear majority of respondents to
the public consultation carried out by the Commission departments considered that the
Remedies Directives have had a positive effect on the public procurement process. It is
considered to be more transparent (80.59%), fairer (79.42%), more open and accessible
(77.65%) and it provides greater incentive to comply with substantive public procurement
rules (81.77%). As confirmed by virtual consensus among all the interested parties, Directive
2007/66/EC substantially increased the effectiveness of pre-contractual remedies by
introducing a minimum standstill period between the notification of an award decision and
the signing of the contract.
Some national systems require that legal protection in public procurement procedures is
provided at first instance by administrative review bodies rather than ordinary courts. As a
general trend, these tend to be more effective. This is confirmed by a large majority of
respondents to the public consultation (74.7%) who considered that procedures before
ordinary courts take generally longer and result in lower standards of adjudication than the
procedures before specialised administrative review bodies.
In most cases, the costs of review procedures, albeit very divergent across Member States, do
not seem to have decisive dissuasive effect on the access to remedies. Moreover, the
Remedies Directives are also well balanced in addressing the interest of all parties concerned.
In particular, 57.06% of respondents to the public consultation considered that the Directives
evenly balance the interest of economic operators in ensuring the effectiveness of public
procurement law and the interest of contracting authorities in limiting frivolous litigation. As
a final point, the Remedies Directives are also effective as a deterrent to non-compliant
behaviour in the area of public procurement.
Alternative penalties are sporadically used in Member States and were considered by
respondents to the online public consultation (carried out by the Commission departments)
and by some Member States to be the least relevant remedy. Nonetheless, views were
expressed that all remedies provided for in the Remedies Directives contribute to their
deterrent effect and provide for a comprehensive and effective system for sanctioning
irregularities in public procurement. Concerning time limits, no specific evidence was
gathered in the context of the evaluation that would demonstrate that time limits that follow
the structure of the Remedies Directives are either too long and cause undue delays in the
public procurement process or too short and thereby do not allow economic operators to
enforce their rights.
The evaluation revealed that certain aspects of the Remedies Directives could be made
clearer. This is confirmed by the contributions received. This applies, for example, to matters
45
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such as the interplay between the Remedies Directives and the new legislative package on
public procurement, and the development of criteria to be applied to lift the automatic
suspension of the conclusion of the contract following the lodging of a legal action.
The evaluation also made it possible to identify problems that persist at national level. In
particular, various stakeholders confirmed in the context of the public consultation that
problems identified are rooted either in national legislation beyond the Remedies Directives
or in national practices, and not in the Remedies Directives.
Finally, the Commission also recognises that in most Member States, the information on
national remedies systems is not collected in a structured manner, making the analysis of the
performance of the Directives extremely difficult. In addition, it is rarely used for
policymaking purposes (for example, identification of resources needed or abusive
complaints; consistency of decisions based on effective searching tools; identification of
contracting authorities/entities against which successful complaints are lodged most often;
and identification of the aspects of procurement procedures that are appealed successfully).
7.2.
Efficiency
Evaluation questions to be answered:
What are the main costs and benefits of the Remedies
Directives for contracting authorities and economic operators? Are there significant
differences in cost or benefits between Member States? Do they create administrative
burden? To what extent is the system being used unnecessarily? Do the benefits of the
Remedies Directives outweigh its costs? Could the same benefits have been achieved at a
lower cost?
7.2.1.
Cost / benefits
As pointed out in the Impact Assessment, the legal process linked to a remedy action can
sometimes be lengthy, while the cost involved may be high and not even be covered by the
financial compensation awarded (if any). Consequently, the potential costs can deter an
aggrieved supplier from bringing a damages action. In principle, the key types of costs that
affect such decisions are the legal costs of bringing the action (administrative/court fees and
the costs of legal services). As presented in the previous section, the Remedies Directives are
perceived as effective by the majority of stakeholders. Nevertheless, their existence could
entail additional operational costs for them, which are analysed below.
59
In the survey of suppliers carried out in the context of the Study, respondents were asked to
provide an estimate of all elements of costs associated with a review, which included internal
and external costs. The estimates of costs were based on 136 responses from suppliers and
162 from contracting authorities.
59
In this context, the notion of costs differs from the one used under section 7.1.3, point c) above. Indeed, for
the needs of the analysis of the efficiency of the Remedies Directives, the costs considered cover all elements
of costs associated with a review, which include internal and external costs.
Internal costs included the time of internal staff to prepare and administrate a review, both by economic
operators and contracting authorities, and were addressed by asking respondents to provide the number of day
spent by junior and senior staff in the review process (the numbers were subsequently multiplied by national
wage level for junior and senior staff in the private sector). External costs included direct payments for legal
advice, court fee and other external costs associated to a review.
46
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The median total costs for suppliers and contracting authorities are in the order of EUR 4 000
for both suppliers and contracting authorities, while the mean is EUR 11 100 for suppliers
and EUR 23 800 for authorities (Table 8).
Table 8: The cost of review (mean and median) by economic operators and contracting authorities
Suppliers
Mean
Median
Minimum
Maximum
€11 100
€4 100
€0
€76 900
Contracting authorities/entities
€23 800
€3 900
€0
€1 718 200
Source: the Study, suppliers and contracting authorities surveys by Europe Economics
It is worth underlining that due to the presence of extreme values, the median should be
considered to be the best indicator of average costs across respondents. Even if the total costs
of EUR 3 900 appears to be high in absolute terms, in particular for small contracting
authorities, it can be assumed that public contracts being awarded in breach of Procurement
Directives would result in higher prices and lower quality and therefore, the costs of not
having a review mechanism in place would be even higher.
Moreover, considering the value of the public contracts at stake (i.e. above the thresholds
defined in the Procurement Directives) in proportional terms, those costs seem reasonable.
Indeed, in terms of costs incurred expressed as a percentage of the contract size, the average
ranged from 1.2 % for suppliers and 1.6 % for contracting authorities. The median of a
contract size was found to be around 0.6 % for suppliers and 0.4 % for contracting authorities
(Table 9).
Table 9: The cost of review as a percentage of the size of contract
Contracting
authorities/entities
1.6 %
0.4 %
0%
17.2 %
Suppliers
Mean
Median
Minimum
Maximum
1.2 %
0.6 %
0%
12.5 %
Source: the Study, suppliers and contracting authorities surveys by Europe Economics
However, cost estimates made by economic operators and contracting authorities reveal a
significant disparity. This is shown in box plots in Figure 10, where the boxes represent the
distribution range (containing 50 % of respondents with a maximum estimated cost between
the 25
th
and 75
th
percentiles). The white gap dissecting the boxes represent the median value
and outliers in the responses are presented as dots.
47
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Figure 10: Dispersion of review costs as a percentage of the size of contract (estimates by Member States)
Costs of review (suppliers)
AT
BE
BG
CY*
CZ*
DE
DK
EE
EL
ES
FI*
FR*
HU
IE*
IT*
LT*
MT*
NL
PL*
PT*
RO
SE
SI*
SK*
UK
0
5
% of contract
10
15
AT
BE
BG*
CY*
CZ
DE
DK
EL
ES
FI
FR
HU*
IE*
IT
LU*
NL
PL
RO*
SE
SI
SK*
UK
0
5
10
% of contract
15
20
Costs of review (CAE)
Source: The Study, suppliers and contracting authorities/entities surveys
Note: * Member States with less than 5 responses
By comparison, the survey addressed to legal practitioners provided a more focused overview
of costs incurred in bringing forward a review case, as it included both the costs of legal
services and other costs.
60
The table below presents the average and median costs of three
different contract sizes based on the data gathered from legal practitioners. As shown in
Table 10, the median cost of the review process represent less than 4 % of the total value of a
contract, particularly at the lower value end, while the average of all contracts for the median
cost oscillates around 1.9 %.
Table 10: Total cost of review according to legal practitioners, by different contract sizes
€250 000
Values
Mean
Median
% of contract size
Mean
Median
7.3 %
3.7 %
2.5 %
1.8 %
0.5 %
0.3 %
3.4 %
1.9 %
19 737
9 188
27 043
18 488
53 015
30 124
33 265
19 266
€1 million
€10 million
Average of all contracts
Source: The Study, legal practitioners’ survey by Europe Economics
To summarise, qualitative stakeholder feedback shows that the Remedies Directives induce
certain operational costs. However, this operational cost remains reasonable, especially when
compared with the value of contracts concerned.
7.2.2.
Overall cost/benefit relationship
It is difficult to provide a conclusive cost/benefit analysis of the legislation evaluated as the
economic impacts of the Remedies Directives are not direct, but they stem from the better
application of the substantive public procurement rules (as the Remedies Directives are
60
The types of ‘other’ costs vary across Member States but in general include court fees, administration fees
(i.e. in bringing a complaint before a Review Body), stamp fees, external expert and witness costs. In some
Member States clients incur a cost if the claim they bring is judged to be invalid.
48
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flanking measures to these rules). In any event, it can be assumed that the total direct cost of
applying the Remedies Directives is negligible, especially when compared to the value of
invitations to tender published on OJEU/TED (roughly EUR 420 billion per year, which is
the total value of procurement that can be potentially concerned by remedy actions).
Additionally, some costs of review and remedies would be incurred whether the Remedies
Directives were in place or not. The difference in that scenario could be that without the
Remedies Directives the procedural guarantees would be fewer and therefore the benefits
could be substantially more limited. Consequently, the availability of remedies and their costs
would not reduce to zero if the Remedies Directives were repealed. On the contrary, the costs
could be even higher due to national differences in the review and remedies rules and lack of
harmonisation at the EU level, as it would be more difficult for tenderers bidding in other
Member States to contest decisions of the contracting authorities. Furthermore, as already
demonstrated by stakeholders' perceptions of the effects of the Remedies Directives on the
public procurement process, an EU wide set of rule on remedies increases the confidence of
firms and the general public in transparency, fairness, openness and accessibility of public
procurement systems.
Concerning benefits, the intervention logic supporting the Remedies Directives is that the
rules on review and remedies not only guarantee the enforcement of the substantive
Procurement Directives, and ultimately the respect of the rule of law as enshrined in the
Charter of Fundamental Rights, but they also foster openness and competition in public
procurement. This ultimately targets better value for money, which among other factors can
be attained through savings and/or lower prices.
As far as the latter are concerned, the 2011 Evaluation Report on the impact and effectiveness
of EU Public Procurement legislation
61
found that overall prices for EU advertised
procedures were 2.5-10 % lower than contracting authorities initially expected (based on
OJEU/TED data). This evaluation estimated that savings of 5 % realised for the EUR 420
billion of public contracts which were published at EU level would translate into savings or
higher public investment of over EUR 20 billion per year. The effective and efficient
implementation of the Remedies Directives can therefore make the above estimated savings
potential brought by the Procurement Directives more prone to materialise.
7.2.3.
Administrative burden
The concept of administrative burden refers to the costs incurred by business, the voluntary
sector, public authorities and citizens in meeting legal obligations to provide information on
their action or production, either to public authorities or to private parties. The administrative
costs consist of two different cost components: the business-as-usual costs and administrative
burdens.
62
They are different from compliance costs, assessed above in section 7.2.1, which
stem from the generic requirements of the legislation, although – as in the case of the
Remedies Directives – they are still costs that do not stem from a legal obligation.
Access to information in the context of award procedures for contracts constitutes an
expression of the principle of transparency, which, along with the principles of equal
treatment and non-discrimination, underlies the EU public procurement rules and intends to
preclude any risk of favouritism or arbitrariness on the part of the contracting authorities.
63
61
62
SEC(2011) 853 final.
Commission staff working document Better Regulation Guidelines SWD(2015) 111 final, Toolbox Tool 53,
http://ec.europa.eu/smart-regulation/guidelines/docs/br_toolbox_en.pdf.
63
Judgment in case C-496/99 P,
Succhi di Frutta,
paragraph 111. See also judgment of 19 June 2003 in case C-
315/01,
GAT,
paragraph 73; judgment of 16 December 2008 in case C-213/07,
Michaniki AE,
paragraphs 44-
49
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The substantive public procurement rules impose information obligations mainly on
contracting authorities, which in most cases must provide substantial
ex ante
and
ex post
information about the award procedures (for instance through the publication of a contract
notice in the OJEU/TED). As already indicated, that obligation of transparency constitutes
the basis of the EU public procurement rules, to the extent that those rules would be
meaningless without access to information.
The Remedies Directives hardly alter the information obligations laid down in the substantive
public procurement rules. One exception is the automatic debrief, that is to say, the
systematic obligation for contracting authorities to inform any unsuccessful candidate or
tenderer of the reasons for the rejection of its application or tender. Under the substantive
public procurement rules, there is only a systematic obligation to inform them that they have
not been successful whilst the reasons are provided upon request.
64
In any event, the automatic debrief allows in practice contracting authorities to avoid an
unduly long standstill period – in absence of the automatic debrief, and in order to comply
with the
Alcatel
jurisprudence, contracting authorities would need to re-start the standstill
period as from the moment the reasons are received by each candidate or tenderer that makes
the request. Additionally, as underlined in section 7.3.1, both contracting authorities and
suppliers regard the provision on the automatic debrief as the most relevant one in the
Remedies Directives (see Figure 11 below).
Since other provisions of the Remedies Directives concerning the provision of information
are voluntary, the additional administrative burden brought about the Remedies Directive is
very limited and lies mainly with contracting authorities. In parallel, the additional
information obligations increase the transparency of public procurement procedures and
openness of the single market.
As a final point, the successful tenderer in a given award procedure might be affected by the
use of a review procedure, in particular if the review body does not take a prompt decision.
However, the potential administrative burden as defined in this subsection that is imposed on
suppliers is only incidental and was not singled out as a problem by stakeholders during the
consultations.
7.2.4.
Conclusions — efficiency:
The Remedies Directives provide overall benefits in line with the intended impacts, both
direct and indirect. There are clear indications that the benefits achieved through the
Directives outweigh their costs. The costs to contracting authorities and suppliers of bringing
forward or defending a review case (including direct and indirect costs) vary widely across
the EU, typically accounting for 0.4%-0.6% of the contract value. The costs would not reduce
to zero if the Remedies Directives were repealed. On the contrary, they could be even higher
because of national differences in the review and remedies rules and a lack of harmonisation
at the level leading to a more cumbersome context for tenderers and others.
45; judgment of 13 October 2005 in case C-458/03,
Parking Brixen,
paragraph 49; judgment of 3 June 1992 in
case C-360/89,
Commission v Italy,
paragraph 11; judgment of 11 May 2006 in case C-340/04,
Carbotermo
SpA,
paragraph 58.
64
See in particular, with regard to the public sector, Article 2a of Directive 89/665/EEC as modified by
Directive 2007/66/EC and Article 41 of Directive 2004/18/EC.
50
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The benefits are important in terms of sound financial management, the best price/quality
ratio and deterrence, especially when considering the value of invitations to tender published
in TED. The 2011 evaluation of EU public procurement legislation in general
65
estimated that
savings of 5% realised for the 420 billion of public contracts that were published at EU level
would translate into savings or higher public investment of over EUR 20 billion a year. The
effective implementation of the Remedies Directives can therefore make such estimated
savings from the Public Procurement Directives more likely to happen. Finally, the
evaluation did not identify any administrative burden considered to be unnecessary for the
operation of the Remedies Directives.
7.3.
Relevance
Evaluation questions to be answered:
Are the objectives of the Remedies Directive still
relevant today? How has the original need for intervention evolved in recent years? In
particular, is there any reason to believe that the initiative is no longer justified or that
alternative provisions or soft measures are needed?
The questions on the relevance are addressed from two perspectives:
(1)
examination of the user’s perceptions of the relevance of the Remedies Directive in
improving the effectiveness of review procedures concerning the award of public
contracts and ensuring better compliance with EU law; and
examination of the data to determine whether the Remedies Directives, in particular
following the amendments introduced by Directive 2007/66/EC, are relevant.
Stakeholders’ views on relevance
(2)
7.3.1.
Based on the surveys of stakeholders, the Study concludes on the continued relevance of the
Remedies Directives. Many provisions of the Remedies Directives are perceived as relevant
across suppliers, contracting authorities and legal practitioners, with the most relevant
provision being the ‘automatic debrief’. Some provisions are perceived as less relevant, such
as those on the Voluntary Ex Ante Transparency Notices (‘VEAT notices’) and penalties. For
details see Figure 11.
65
The Evaluation Report on Impact and Effectiveness of EU Public Procurement Legislation, SEC(2011) 853
final.
51
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Figure 11: Relevance of different provisions of the Remedies Directive
Relevant provisions
Contracting authorities
Do not know
None
Transparency notice
Penalties and shortening
Render awards ineffective
Suspension of procedure
Review time limits
Standstill period
Automatic debrief
0
Graphs by Respondents
43%
15%
32%
4%
5%
7%
13%
Suppliers
23%
13%
15%
41%
49%
30%
41%
58%
59%
29%
55%
100
200
300
400
500 0
100
200
300
400
500
Number (and %) of total respondents
Source: The Study, survey of suppliers and contracting authorities/entities by Europe Economics
As the Study concludes, even if certain provisions are perceived as less pertinent, they are
still relevant because they have a deterrent effect. A clear majority of respondents to the
public consultation carried out in the context of the Study (more than 80 %) consider that the
Remedies Directives helped public procurement process to become more compelling for
contracting authorities to comply with the requirements of the Procurement Directives.
The results from the Commission's public consultation concerning the ranking of relevance of
the provisions in the Remedies Directives (from the most relevant to the least relevant) are
shown in Figure 12.
Figure 12: Remedies Directive’s provisions from the most relevant to the least relevant
Source: Directorate General for Internal Market, Industry, Entrepreneurship and SMEs
52
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Based on the results of the Commission’s public consultation, the standstill period was the
measure that most respondents unconditionally considered to be the most relevant one. On
the other hand, alternative penalties were considered by respondents to be the least relevant
remedy. For details see Annex 3 (replies to questions 9 to 13).
The majority of Member States responses to the Commission’s questionnaire perceived
interim measures, standstill period, alternative penalties, ineffectiveness and damages equally
relevant to palliate breaches of EU public procurement rules. It was made clear that all these
measures combined provide for a comprehensive and effective system for sanctioning
irregularities in public procurement. Alternative penalties were perceived as less relevant by
some Member States. The reason for this is that alternative penalties constitute a simple
relocation of funds (i.e. the punished contracting authority financed from the State budget
pays a fine to the same State budget). Damages were perceived as an important means of last
resort but less relevant.
Judges from administrative supreme courts considered as the most relevant provisions in the
Remedies Directives the automatic debrief to unsuccessful tenderers and the ensuing
standstill period during which contracting authorities cannot conclude the contract.
Representatives of first instance specialised administrative review bodies that participated in
the meeting held in Brussels on 30 September 2015 also underlined that the Remedies
Directives are useful and had improved the remedy system in their respective Member States.
Notwithstanding this, the results of the Study show that perceptions of continuing problems
exist in addressing breaches in procurement law among some participants to the surveys
(particularly from suppliers). There is also some evidence of a perceived lack of trust in the
procurement process and a perceived lack of transparency in public procurement in general.
These perceptions suggest that continuing efforts are required to achieve the benefits of the
Procurement Directives. The Remedies Directives are thus relevant in enabling procurement
law breaches to be challenged and in promoting a more efficient and transparent procurement
market.
The Commission departments’ public consultation show that 62.94 % of respondents
consider that there are still problems in addressing breaches in EU public procurement law,
whereas 30.59 % of respondents do not see such problems. In general, those who still saw
problems gave at the same time examples of how the situation could be improved by the
Remedies Directives. This can be interpreted in the sense that stakeholders perceive the
Remedies Directives as a relevant vehicle to address infringements of EU Public Procurement
law. For details see Annex 3 (replies to question 20).
7.3.2.
Actual usage of the provisions
As mentioned, in the introduction to this section, another indicator of the relevance of the
Remedies Directives is the actual usage of provisions they provide.
As the Study indicates, there were around 50 000 first instance decisions across Member
States during the period 2009-2012.
During the same period, there were also 10 103 second instance decisions made (for Member
States where information was available).
66
66
CZ, CY, DE, DK, EE, HU, IE, LT, LU, RO, SE, SI.
53
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Finally, as mentioned in section 6.6, there were more than 57 000 VEAT notices published
across EU-28 for the period 2010-2015. The majority of VEAT notice usage was by France
(37 226 contracts), followed at a distance by Poland (5 453), the United Kingdom (3 256) and
Denmark (2 504). After the entry into force of the provisions, the uptake of VEAT notices by
the market was immediate and remains stable at around 10 000 notices per year.
7.3.3.
Conclusions — relevance:
The objectives of the Remedies Directives are still relevant. The evaluation revealed that
many provisions of the Directives are perceived as relevant across suppliers, contracting
authorities and legal practitioners. Based on replies to the public consultation, the most
relevant provision appears to be the standstill period (65% of respondents), followed by the
suspension of the contract award procedure where review proceedings are initiated (62%) and
the automatic debrief to tenderers (58%). Even if certain provisions are perceived to be of
less practical value, they still contribute to the deterrent effect of the Remedies Directives.
Another indicator of the relevance of the Remedies Directives is the actual use of the
procedures they provide. In general, the remedies provided are frequently used in most
Member States. There were around 50 000 first instance decisions across Member States
during 2009-2012. The most frequently type of remedy sought is set-aside decision, followed
at some distance by interim measures and the removal of discriminatory specifications.
7.4.
Coherence with other policies
Evaluation questions to be answered:
To what extent are the Remedies Directives consistent
with other policy objectives at EU and national level?
Open and well regulated procurement markets are expected to contribute to a better use of
public resources, with the intention of improving the quality and/or lowering the price of
purchase made by contracting authorities. The experience acquired with the Procurement
Directives showed that they could not realise completely their objectives if economic
operators were unable to effectively ensure that the rights given them by them were observed
everywhere in the EU.
Consequently, the Remedies Directives were adopted as flanking measures aimed at ensuring
that economic operators everywhere in the EU would have minimum procedural guarantees
to access to clear, rapid and effective procedures for seeking redress in cases where they
consider contracts had been awarded in breach of Procurement Directives. This was, and is,
crucial to making sure that contracts ultimately go to the company which has made the best
offer, and therefore to building confidence among businesses and the public that public
procurement procedures are fair.
In this context, remedies are indispensable to ensure the overall enforcement of substantive
public procurement rules. Increased levels of enforcement of the law increase the incentives
of contracting authorities to comply with the law (deterrent effect), thus helping that the
markets remain open and competitive.
The Remedies Directives were generally aligned with the new legislative package on public
procurement adopted in 2014, in particular to cover the concession contracts subject to
Directive 2014/23/EU. Notwithstanding this, the operation of the Remedies Directives in the
context of the new legislative context may need some interpretative support. In particular,
and as confirmed by various stakeholders who expressed their views in the context of this
evaluation, enforcement of the new rules on modification and termination of public contracts
and concession contracts and the application of the Remedies Directives to the so-called
54
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1714470_0055.png
"light regime" under the new substantive public procurement rules could be explained by the
Commission.
As already indicated, Article 47 of the Charter of Fundamental Rights of the European Union
and Article 6 of the European Convention on Human Rights enshrine the right to an effective
remedy. In this respect, the Court has found that the right to an effective remedy is a general
principle of EU law.
67
Furthermore, Article 19(1) of the Treaty on European Union states
that: ‘Member
States shall provide remedies sufficient to ensure effective legal protection in
the fields covered by Union law’
68
. In the light of this, the Remedies Directives are in line
with the rights and general principles laid down in EU primary law concerning fundamental
rights.
The Court has also acknowledged that the Remedies Directives give specific expression to
the general principle enshrining the right to an effective remedy in the particular field of
public procurement
69
. It is true that there is limited EU secondary legislation laying down
review procedures in specific areas
70
. This fact, however, is not a sign of incoherence – it
merely shows that the EU legislature has considered that certain areas, on account of their
specificities, cannot rely exclusively on EU primary law or in existing national procedural
systems. The specificities in the public procurement area (e.g. potential for persistent
breaches of EU law, need to obtain a timely decision and economic importance) are
explained below, in section 7.5.
Finally, by improving the effectiveness of national review procedures, especially those
dealing with illegal direct awards of contracts, the Remedies Directives play an important
role in tackling effectively breaches of Procurement Directives that could also entail
irregularities with criminal implications.
The evaluation has not found any possible conflicts with other policy fields.
Conclusions — coherence with other EU policies:
The Remedies Directives are coherent with other EU policies. As confirmed by the Court, the
right to an effective remedy is a general principle of EU law. In the light of this, the
Remedies Directives are in line with the rights and general principles laid down in EU
primary law concerning fundamental rights. The Remedies Directives lie at the core of public
procurement legislation as they allow bidders to enforce their substantive rights. They were
found to be generally aligned with the new 2014 legislative package on public procurement,
in particular to cover the concession contracts subject to Directive 2014/23/EU. Nonetheless,
as already mentioned in section referring to effectiveness of the Remedies Directives, the
interplay between these Directives and the new legislative package on public procurement
could be further clarified. Finally, by improving the effectiveness of national review
procedures, especially those dealing with illegal direct awards of contracts, the Remedies
Directives also play an important role in effectively tackling breaches of Procurement
Directives that could also entail irregularities with criminal implications. The evaluation has
not found any possible conflicts with other policy fields, but rather the contrary.
Vanbreda,
paragraph 28.
See also the judgment of 19 November 2014 in case C‑404/13
ClientEarth,
paragraph 52.
69
Vanbreda,
paragraph 28.
70
An example, in the field of environment, is Public Participation Directive 2003/35/EC, which gives rights of
access to justice in relation to environmental impact assessment and integrated pollution prevention and
control.
67
68
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7.5.
The EU added value
Evaluation questions to be answered:
What is the ongoing added value of EU legislation in
this field? What would be the effects if the Remedies Directive were to be withdrawn and
Member States were free to adjust their national regulatory frameworks? Would these
benefits have been achieved in the absence of the Directives?
As mentioned previously, the Remedies Directives do not intend to fully harmonise the
remedies systems in the area of public procurement, in line with the competences conferred
upon the EU in this field by Member States. The Remedies Directives lay down only ‘the
minimum conditions to be satisfied by the review procedures established in domestic law to
ensure compliance with the requirements of EU law concerning public procurement
71
’.
In
fact, the Remedies Directives frame the principle of national procedural autonomy of
Member States so as to ensure the effective enforcement of EU public procurement rules at
national level.
It is generally conceded by all the sources used to prepare this evaluation that it is very
importance to have a specific system of remedies in public procurement. Substantive EU
public procurement law is too complex and ordinary courts under ordinary procedural codes
cannot guarantee rapid and effective review as required by the case-law of the Court. For
instance, before a mandatory standstill period was introduced, no interim measure before
ordinary courts was rapid enough to suspend conclusion of the awarded contract.
In general, stakeholders expressed the view that the system of remedies could not be left
solely to Member States under the principle of national procedural autonomy because all
bidders in the EU should benefit from at least a minimum level of protection. In particular,
judges from supreme administrative courts admitted that before the Remedies Directives
were amended by Directive 2007/66/EC, it was impossible to challenge the outcome of
public procurement. This was reflected in a relatively low number of cased launched before
2009, as argued in the impact assessment report prior to the adoption of Directive
2007/66/EC.
72
In the same token, national procedural rules before the adoption of Directive 2007/66/EC
(which codified the most important findings of the
Alcatel
ruling
73
) were not sufficient to
ensure compliance with the substantive public procurement rules by contracting authorities
since they did not prevent the ‘race to signature‘. Even when Member States started
introducing their own standstill periods as result of the
Alcatel
ruling, the solutions adopted
were too divergent and could not ensure a level playing field for economic operators in the
EU. According to an OECD study of 2007
74
, the differences in standstill periods before the
entry into application of Directive 2007/66/EC ranged from 7 to 30 days (Table 11).
Judgment of the Court of Justice of 30 September 2010 in case C-314/09
Strabag AG,
paragraph 33.
Impact Assessment Report — Remedies in the field of public procurement, Commission Staff Working
Document, SEC(2006)557.
73
See section 3.2.1 of this Staff Working Document.
74
OECD (2007), ‘Public Procurement Review and Remedies Systems in the European Union’, SIGMA Papers,
No 41, OECD Publishing. http://dx.doi.org/10.1787/5kml60q9vklt-en
71
72
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Table 11: Standstill periods between the award decision and the conclusion of the contract (in days)
Austria
Bulgaria
Czech Republic
Denmark
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
7 or 14
10
15
7 to 10
14
21 or 28
10
14
8
14
30
Lithuania
Luxemburg
Malta
Netherlands
Poland
Portugal
Romania
Slovakia
Slovenia
Sweden
10
15
10
15
7
10
15
14
20
10
Source: OECD (2007), “Public Procurement Review and Remedies Systems in the European Union”, SIGMA Papers, No. 41,
OECD Publishing. http://dx.doi.org/10.1787/5kml60q9vklt-en
Furthermore, before the remedy of ineffectiveness was introduced by Directive 2007/66/EC
there were no instruments at national level that would encourage Member States to tackle
direct awards. This can be evidenced by the judgment of the Court in case C-503/04,
Commission v Germany
75
. After the Court concluded that contracts in a waste management
sector were awarded illegally, Germany sent a letter to the municipality concerned asking it
to ensure compliance with the public procurement legislation in force and to notify it of the
measures intended to prevent similar infringements in future. Notwithstanding this, without
the risk of a contract being considered ineffective, the enforcement leverage was limited.
All the elements above confirm that the Remedies Directives add value to the single market
because of the minimum level of harmonisation that they ensure. In those conditions, bidders
can expect the minimum level of protection across the EU.
On another level, infringement procedures launched by the Commission under Article 258 of
the TFEU are not sufficient to ensure compliance with the substantive public procurement
rules by contracting authorities. Indeed, the Commission cannot pursue each and every
infringement of EU public procurement rules identified in the Member States. Compared to
other fields of EU intervention, public procurement rules have certain specificities (some of
which may also be present in other areas of EU law):
(1)
As long as the contract is above the EU thresholds, the substantive public
procurement rules are applicable, irrespective of cross-border interest.
(2)
Even in the presence of perfectly EU-compliant national legislation, in only one
tendering procedure conducted by only one contracting authority there is a substantial
potential for numerous infringements (e.g. unlawful exclusion of tenderers, unlawful tender
specifications, unlawful contract award criteria, use of the wrong procedures, accepting
abnormally low tenders, conflict of interests, etc.) which cannot be all considered by the
Commission in the context of Article 258 TFEU procedures.
(3)
The Commission does not have the expertise necessary to take decisions concerning
the technical aspects of many public contracts when they could be suspected of a breach of
EU public procurement rules.
(4)
Infringement procedures are not intended to protect bidders’ rights, but rather to
ensure future systematic Member State compliance with EU public procurement legislation.
The ruling under Article 258 TFEU is primarily declaratory for the non-compliance.
75
See footnote 25.
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Moreover, the procedure under Article 258 TFEU is lengthy and the time factor is essential in
public procurement review.
(5)
The national public procurement activity covered by EU rules involves a very large
amount of national and, in some cases, EU funds. The result is that direct rights of recourse
for parties participating in public tenders under EU substantive public procurement rules are
indispensable for the proper functioning of those rules and for the proper functioning of the
single market for economic operators taking part in tendering procedures.
Member States responses to the Commission’s questionnaire considered access to justice one
of the cornerstones of the rule of law. Member States were of the opinion that in the absence
of the Remedies Directives, it would still be necessary to protect bidders’ individual rights
due to the right to a fair trial and the right to a tribunal according to Article 6 of the European
Convention on Human Rights and their constitutional laws.
Moreover, the principles laid down in the TFEU also require Member States to guarantee a
minimal level of protection of bidders' individual rights in the context of contract award
procedures. Nonetheless, it was made clear by Member States that in the absence of the
Remedies Directives, the effectiveness of the protection of the bidders’ individual rights
would not be fully guaranteed. The added value of the Remedies Directives is that they allow
bidders to submit the request for review before the conclusion of public contracts, when
infringements can still be corrected. A minimum level of harmonisation at EU level, as
guaranteed by the Remedies Directives, presents therefore an added value.
Conclusions
— the EU added value:
The Remedies Directives present a clear EU added value. It was generally confirmed by all
sources of information used for the purposes of the evaluation that it is of utmost importance
to have EU law requirements for remedies in public procurement. Ordinary courts under
ordinary procedural codes cannot guarantee rapid and effective review as required by EU
case-law. For instance, before a mandatory standstill period was introduced by Directive
2007/66/EC, no interim measure before ordinary courts was rapid enough to suspend
conclusion of the awarded contract.
Compared with other fields of EU law, public procurement rules have certain specificities.
Firstly, as long as the contract is above the EU thresholds, the substantive public procurement
rules are applicable, irrespective of cross-border interest. Secondly, in each tendering
procedure conducted by any contracting authority/entity there is a significant potential for
numerous infringements (e.g. unlawful exclusion of tenderers, unlawful tender specifications,
unlawful contract award criteria, use of the wrong procedures, accepting abnormally low
tenders, conflict of interests, etc.) The role of the Commission, when dealing with individual
complaints and potential infringements of EU law, is directed to ensuring future systematic
respect for EU law, rather than obtaining remedies for individual parties to public tendering
procedures particularly given the large volume of contracting authorities, tenderers and
procedures in the EU and the technicalities involved in each individual process.
Suitable rights of direct recourse for bidders are therefore indispensable for the correct
functioning of substantive public procurement rules and for the proper operation of the single
market in the public sector. As confirmed by numerous stakeholders, the minimum level of
harmonisation ensured by Remedies Directives is absolutely essential in this respect.
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8.
C
ONCLUSIONS
Based on the evaluation, the Commission concludes that the Remedies Directives, in
particular amendments introduced by Directive 2007/66/EC, largely meet their objectives in
an effective and efficient way although it has not been possible to quantify the concrete
extent of their cost/benefits. Even if specific concerns are reported in some Member States,
they usually stem from national measures and not from the Remedies Directives themselves.
In general qualitative terms, the benefits of the Remedies Directives outweigh their costs.
They remain relevant and continue to bring EU added value.
Despite the overall positive conclusion of the evaluation, certain shortcomings were
identified, in particular as regards the clarity of some provisions and the availability of data.
Data for remedies actions on public contracts above thresholds brought in each Member State
are not collected in a structured, coherent and systemic manner that would allow comparing
the results obtained. For this reason, the proper measurement or estimation of the effects of
the Remedies Directives is more difficult.
Based on the information gathered in this evaluation, the report from the Commission to the
European Parliament and the Council on the effectiveness of Directive 89/665/EEC and
Directive 92/13/EEC, as modified by Directive 2007/66/EC, concerning review procedures in
the area of public procurement to which this document accompanies, draws the necessary
operational conclusions and proposes relevant paths of action.
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A
NNEX
1 — C
ASE
-
LAW
PROCUREMENT
CONCERNING REMEDIES IN THE AREA OF PUBLIC
Judgment of 24 January 1995 in case C-359/93,
Commission v Netherlands
Judgment of 17 September 1997 in case C-54/96,
Dorsch Consult
Judgment of 15 January 1998 in case C-44/96,
Mannesmann Anlagenbau Austria
Judgment of 24 September 1998 in case C-76/97,
Tögel
Judgment of 24 September 1998 in case C-111/97,
EvoBus Austria
Judgment of 17 December 1998 in case C-353/96,
Commission v Ireland
Judgment of 4 February 1999 in case C-103/97,
Köllensperger and Atzwanger
Judgment of 4 March 1999 in case C-258/97,
HI
Judgment of 19 May 1999 in case C-225/97,
Commission v France
Judgment of 28 October 1999 in case C-81/98,
Alcatel Austria
Judgment of 18 November 1999 in case C-275/98,
Unitron Scandinavia and 3-S
Judgment of 18 June 2002 in case C-92/00,
HI
Judgment of 12 December 2002 in case C-470/99,
Universale-Bau
Judgment of 23 January 2003 in case C-57/01,
Makedoniko Metro and Michaniki
Judgment of 27 February 2003 in case C-327/00,
Santex
Judgment of 10 April 2003 in joined cases C-20/01 and C-28/01,
Commission v Germany
Judgment of 15 May 2003 in case C-214/00,
Commission v Spain
Judgment of 19 June 2003 in case C-249/01, Hackermüller
Judgment of 19 June 2003 in case C-315/01,
GAT
Judgment of 16 October 2003 in case C-283/00,
Commission v Spain
Judgment of 19 June 2003 in case C-410/01,
Fritsch, Chiari & Partner
Judgment of 4 December 2003 in case C-448/01,
EVN and Wienstrom
Judgment of 12 February 2004 in case C-230/02,
Grossmann Air Service
Judgment of 18 March 2004 in case C-314/01,
Siemens and ARGE Telekom
Judgment of 24 June 2004 in case C-212/02,
Commission v Austria
Judgment of 11 January 2005 in case C-26/03,
Stadt Halle and RPL Lochau
Judgment of 3 March 2005 in case C-21/03,
Fabricom
Judgment of 3 March 2005 in case C-34/03,
Fabricom
Judgment of 2 June 2005 in case C-394/02,
Commission v Greece
Judgment of 2 June 2005 in case C-15/04,
Koppensteiner
Judgment of 8 September 2005 in case C-129/04,
Espace Trianon and Sofibail
Judgment of 18 July 2007 in case C-503/04,
Commission v Germany
Judgment of 11 October 2007 in case C-241/06,
Lämmerzahl
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Judgment of 10 January 2008 in case C-70/06,
Commission v Portugal
Judgment of 14 February 2008 in case C-450/06,
Varec
Judgment of 3 April 2008 in case C-444/06,
Commission v Spain
Judgment of 21 May 2008 in case T-495/04,
Belfass v Council
Judgment of 19 June 2008 in case C-454/06,
pressetext Nachrichtenagentur
Order of 2 July 2009 in case T-279/06,
Evropaïki Dynamiki v ECB
Judgment of 12 November 2009 in case C-199/07,
Commission v Greece
Judgment of 23 December 2009 in case C-455/08,
Commission v Ireland
Judgment of 28 January 2010 in case C-406/08,
Uniplex
Judgment of 28 January 2010 in case C-456/08,
Commission v Ireland
Judgment of 9 March 2010 in case C-378/08,
ERG
Judgment of 6 May 2010 in case C-145/08,
Club Hotel Loutraki
Judgment of 6 May 2010 in case C-149/08,
Aktor A.T.E.
Judgment of 20 May 2010 in case T-258/06,
Germany v Commission
Judgment of 30 September 2010 in case C-314/09,
Strabag
Judgment of 21 October 2010 in case C-570/08,
Symvoulio Apochetefseon Lefkosias
Judgment of 9 December 2010 in case C-568/08,
Combinatie Spijker Infrabouw-De Jonge
Konstruktie
Judgment of 3 March 2011 in case T-589/08,
Evropaïki Dynamiki v Commission
Judgment of 29 March 2011 in case T-33/09,
Portugal v Commission
Judgment of 9 June 2011 in case C-401/09 P,
Evropaïki Dynamiki v ECB
Judgment of 10 November 2011 in case C-348/10,
Norma-A and Dekom
Judgment of 12 July 2012 in case T-476/07,
Evropaïki Dynamiki v Frontex
Judgment of 4 July 2013 in case C-100/12,
Fastweb
Judgment of 15 January 2014 in case C-292/11 P,
Commission v Portugal
Judgment of 8 May 2014 in case C-161/13,
Idrodinamica Spurgo Velox
Judgment of 23 May 2014 in case T-553/11,
European Dynamics Luxembourg v ECB
Judgment of 11 September 2014 in case C-19/13,
Fastweb
Judgment of 11 December 2014 in case C-440/13,
Croce Amica One Italia
Judgment of 12 March 2015 in case C-538/13,
eVigilo
Order of 23 April 2015 in case C-35/15 P(R),
Commission v Vanbreda Risk & Benefits
Judgment of 6 October 2015 in case C-61/14,
Orizzonte Salute
Judgment of 6 October 2015 in case C-203/14,
Consorci Sanitari del Maresme
Judgment of 26 November 2015 in case C-166/14,
MedEval
Judgment of 17 December 2015 in case C-25/14,
UNIS
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Order of 7 April 2016 in case C‑495/14,
Tita
Judgment of 15 September 2016 in case C-488/14,
Star Storage
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1714470_0063.png
A
NNEX
2 — S
YNOPSIS REPORT OF CONSULTATION ACTIVITIES
The main objective of the consultation activities was to gather expertise, opinions and
evidence on the Remedies Directives' functioning.
1. Consultation activities carried out:
Open online public consultation carried out by the Commission departments
The Commission departments carried out an open online public consultation (the ‘EC public
consultation’) which aimed to collect evidence on the Remedies Directives' functioning and
added value. This consultation was open from 24 April to 20 July 2015 and yielded 170
responses coming from all EU Member States. The consultation involved contracting
authorities and entities, economic operators, academics, lawyers, review bodies and citizens -
the share of responses coming from different categories of stakeholders is presented in Figure
13.
Figure 13: The share of responses to public consultation by participant’s category
Source: DG for Internal Market, Industry, Entrepreneurship and SMEs
Overall, 63% of the respondents declared that they have been involved in public procurement
litigation over the last five years.
Targeted consultations
In addition to the open public consultation, the Commission departments also collected
feedback from stakeholders via targeted / close audience consultations. The findings of these
consultations were extensively used throughout the current evaluation Staff Working
Document and, whenever relevant, the input was marked with quotes and references.
1.1. Consultations with Member States
Based on the results of the Study, on 15 October 2015 the Commission consulted government
experts on public procurement from Member States
via
the Commission Government Expert
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Group on Public Procurement. As a follow up of this meeting, the Commission asked
Member States two sets of questions:
i.
ii.
questions related to the functioning of the Remedies Directives at national level; and
questions on the overall effectiveness of the Remedies Directives.
The Commission received 16 replies from Austria, Germany, Finland, Estonia, France,
Croatia, Hungary, Italy, Latvia, Lithuania, the Netherlands, Poland, Slovenia, Slovakia,
Sweden, the UK. Norway also provided replies.
The content of the detailed questionnaire is provided in Annex 3.
1.2. Consultations with experts and practitioners
Within the context of this evaluation, a number of targeted consultations with experts and
practitioners in public procurement litigation have been carried out, namely:
•
as part of the Study, a total of 616 and 832 responses, from suppliers and contracting
authorities respectively, were collected in relation to the functioning of national
remedies systems; the responses covered the majority of Member States, although few
or no responses were obtained from Latvia, Luxembourg and Croatia; additionally, a
total of 112 responses from legal practitioners were received across all Member States,
except Poland and Portugal;
meeting of Commission Stakeholder Expert Group on Public Procurement held in
Brussels on 23 February 2015;
meeting with 11 first instance specialised administrative review bodies held in
Brussels on 30 September 2015;
meeting with supreme administrative judges via the 'Association of the Council of
States and Supreme Administrative Jurisdictions of the European Union' held in
Helsinki on 22-23 October 2015.
•
•
•
2. Results - Summary of the open online consultation and meetings
Open online public consultation
The online public consultation allowed all interested parties to express their view about the
functioning of the Remedies Directives. However, despite being public, the consultation only
received 170 replies (see figure 13 in this annex for the share of responses by participant’s
category). This relatively low number of replies might be explained by the technical nature of
the Remedies Directives.
Overall, some general conclusions could be drawn from the predominant replies to the
questions asked (the percentages are indicated in brackets):
-
Respondents were of the opinion that the Remedies Directives have had a positive
effect on the public procurement process, making it more transparent (80.59%), fairer
(79.42%), more open and accessible (77.65%) and more compelling to comply with
EU substantive public procurement rules (81.77%).
They considered that the Remedies Directive evenly balance the interest of economic
operators in ensuring the effectiveness of public procurement law and the interest of
contracting authorities in limiting frivolous litigation (57.06%).
The provision most relevant to respondents was the standstill period (65%), followed
by the suspension of the contract award procedure where review proceedings are
initiated (62%) and the automatic debrief to tenderers (58%); alternative penalties, in
turn, are the least relevant remedy (27%).
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1714470_0065.png
-
Respondents indicated that the procedures before ordinary courts take longer and
result in lower standards of adjudication than the procedures before specialised
administrative review bodies (74%).
According to respondents, the procedure in first instance often takes up to 1 month in
the case of interim measures (42.35%), between 1 and 3 months for the setting aside
of decisions and for ineffectiveness (32.35%) and more than a year for damages
(22.94%).
Respondents were of the view that the costs of review procedures, albeit very
divergent across Member States, in most of the cases do not have decisive dissuasive
effect on the access to remedies (50.59%).
Nevertheless, some problems in addressing breaches in EU public procurement law
are still present (62.94%). Respondents indicated that some problems identified are
rooted either in national legislation beyond the Remedies Directives or in national
practices rather than stem from the Remedies Directives.
-
-
-
Meeting of the Commission Stakeholder Expert Group on Public Procurement
76
The meeting was held in Brussels on 23 February 2013.
The members of the Experts Group underlined that it is of utmost importance to have a
specific system of remedies in public procurement because substantive public procurement
law is too complex and ordinary courts under ordinary procedural codes cannot guarantee
rapid and effective review as required by EU Court case-law. For instance, before a
mandatory standstill period was introduced no interim measure before ordinary courts was
rapid enough to suspend conclusion of the awarded contract. The system of remedies cannot
be left for Member States under the principle of national procedural autonomy because all
bidders in the EU should benefit from the same level of minimum protection.
The advantages of administrative review bodies over judicial ones in terms of delays and
costs were mentioned. The example of Scotland was given where a procurement tribunal was
set up and turned out to be quicker and less expensive than ordinary court proceedings. It was
suggested that Member States could be encouraged to set up such tribunals that would have
jurisdiction to consider only claims that arise before the conclusion of a contract where the
rapidity of review decisions is of a particular importance.
It was concluded that pre-contractual remedies (setting aside of decisions) are more effective
than post-contractual remedies (damages, ineffectiveness). With regard to damages, experts
underlined that it is notoriously difficult to seek damages in most Member States, mostly
because of the need to prove that the economic operator was genuinely a tenderer who had a
serious chance of winning the contract. Nonetheless, it was underlined that damages present a
less attractive or efficient means of sanction than pre-contractual remedies because economic
operators are interested in being awarded a contract and not in compensation.
Inconsistency of decisions of first instance review bodies was also mentioned by experts as a
problem in many Member States.
The discussion also revealed the lack of clarity with regard to the lifting of a statutory
automatic suspension of contract conclusion once the application for review is lodged with
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The Expert Group is composed of 20 public procurement experts. The task of the group is to provide the
Commission with high quality legal, economic, technical and/or practical insight and expertise with a view to
assisting it in shaping the public procurement policy of the Union.
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the review body. In some Member States it is possible to lift this automatic suspension. For
example, because of the liberal test applied by the UK courts it is very easy to obtain the
lifting of automatic suspension in that Member State. This approach is problematic form the
point of view of the effectiveness of pre-contractual remedies because once the contract is
signed, the bidder is left with post-contractual remedies only (damages and ineffectiveness).
In Germany, on the contrary, it is difficult to obtain the lifting of a statutory automatic
suspension. It was suggested that there should be more consistency across Member States in
this respect.
Meeting with First Instance Specialised Administrative Review Bodies
The meeting was held in Brussels on 30 September 2015 with first instance specialised
administrative review bodies.
11 Member States participated (Croatia, Spain, Poland, Malta, Slovakia, Denmark, Slovenia,
Estonia, Romania, Cyprus, Hungary).
The purpose of the meeting was to gather views on the Remedies Directives' functioning and
on possible future cooperation from specialised administrative review bodies adjudicating in
first instance in public procurement cases.
Participants confirmed that the Remedies Directives, in particular amendments introduced in
Directive 2007/66/EC, are useful and have improved the review systems in Member States.
There was consensus among participants that at present there is no need to modify the
Directives. Specific problems related to remedies result from national implementing
measures and national approach to enforcement rather than from the Directive. However,
according to the participants, further guidance from the Commission (e.g. on fees,
independence of the review bodies) would be useful. Soft law from the Commission would
also help to improve and strengthen national systems. Participants underlined that it would be
very useful to establish a network of first instance administrative review bodies in order to
share best practice and to exchange views between them on a regular basis.
Participants indicated that special administrative bodies were established because they offer
faster review compared to general courts - time length for the review procedures varies from
4 months (Denmark) to 15 days (Poland). The success rate of appeals from decisions of first
instance review bodies is low, which proves the seriousness of the work carried out in first
instance by these bodies.
Meeting with the Supreme Administrative Court Judges
The meeting took place on 22-23 October 2015 in Helsinki during the conference
"Recent
case-law of the Court of Justice of the European Union and of the (Supreme)
Administrative Courts in public procurement litigation", organised by
the 'Association of
the Council of States and Supreme Administrative Jurisdictions of the European Union' and
the Supreme Administrative Court of Finland.
The purpose of the meeting was to gather views from the supreme administrative court judges
on the Remedies Directives' functioning and their future.
The feedback on the relevance and the effectiveness of the Remedies Directives as amended
by Directive 2007/66/EC was positive. In particular, judges mentioned that before the
standstill period between the award decision and the conclusion of the contract was
introduced by Directive 2007/66/EC, it was impossible to challenge the outcome of public
procurement as no interim measure was rapid enough to suspend the conclusion of the
awarded contract. Automatic debrief to unsuccessful tenderers and the standstill period were
mentioned as the most effective and relevant provisions in the Remedies Directives.
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It was underlined that it is difficult to bring actions for damages in Member States. Member
States' legal systems differ on the test of causation and recoverable losses. In particular, in
most cases it is practically impossible for the plaintiff to prove that it had genuine chances to
win the contract if the public procurement rules had been complied with. Increased
harmonisation in this field would be of added value.
Participants also underlined that the lifting of the automatic suspension of the conclusion of
the contract following the lodging of a legal action and in particular, the criteria to be applied
by courts to lift the suspension, could be clarified at EU level.
Some isolated problems with enforceability of judgments were mentioned by participants. It
was also underlined that EU law could provide some guidance on how to ensure
confidentiality of documents during the review procedure. Participant underlined that parties
must enjoy the right to a fair hearing while respecting at the same time the protection of
commercial secrets.
Consultations with Member States
Member States were asked on 15 October 2015 several questions related to the functioning of
the Remedies Directives at national level and to the overall effectiveness of the Remedies
Directives (e.g. the length of review procedures, costs and their impact on access to justice,
the Remedies Directives' EU added value, problems in addressing breaches in EU public
procurement law, how to improve the functioning of the remedies systems in Member
States).
Whereas the length of review procedures is diverse in Member States, Member States do not
identify any examples of the remedy system causing delays in the award of public contracts
or only exceptionally identify such delays. Neither of Member States that replied to the
questionnaire identified systematic abuses of appeals to the detriment of the timely
functioning of the system in that Member State.
The costs of review are also diverse in Member States. Member States recognise that costs
are a factor to be taken into account by potential review-seekers but they also help to ensure
that only well-founded cases are brought for review. In some Member States access to review
is free (e.g. in Sweden, in Latvia there is no fee to submit a complaint in the first instance). In
general, Member States do not consider that fees that they impose have a dissuasive effect on
economic operators to file complaints. Some Member States are in the process of reforms to
lower the amount of fees whereas others on the contrary, consider imposing higher fees in the
future.
As far as impact on time and/or standard for review depending on whether the case is dealt
with by an administrative review body or an ordinary court is concerned, some Member
States report that in comparison with the usual length of procedures of ordinary courts the
lengths of procedures of the administrative public procurement review bodies is substantially
shorter. Another advantage is higher degree of specialisation of such bodies in the field of
public procurement.
Access to justice is considered by Member States as one of the corner stones of the
Constitutional State. Member States are of the opinion that in the absence of the Remedies
Directives it would be possible to protect bidders' individual rights due to the right to a fair
trial and the right to a tribunal according to Article 6 of the European Convention on Human
Rights and their constitutional laws. The Treaty principles also require Member States to
guarantee a minimal level of protection of bidders' individual rights in the context of contract
award procedures. In the absence of the Remedies Directives, Member States would still need
to make their national legislation compatible with judgments of the Court of Justice on public
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procurement remedies. Nonetheless, in the absence of the Remedies Directives the
effectiveness of the protection of the bidders' individual rights would not be fully guaranteed.
The added value of the Directives is that they allow bidders to submit the request for review
before the conclusion of public contracts, when infringements can still be corrected. A
minimum level of harmonisation at EU level, as guaranteed by the Remedies Directives, is
recognised to be necessary.
The majority of Member States replying to the questionnaire perceive interim measures,
standstill period, alternative penalties, ineffectiveness and damages as effective to palliate
breaches of EU public procurement rules. All above mentioned measures together or the
relevant combination of them provide for a comprehensive and efficient system for
sanctioning of irregularities in public procurement.
In some Member States alternative penalties are either not implemented or are not awarded.
Alternative penalties (fines) are also not perceived as relevant by some Member States
because they constitute a simple reallocation of public funds (the punished contracting
authority financed from the State budget pays a fine to the same budget). Some Member
States also underline that damages are important at a last resort, but less effective.
In general, the majority of Member States consider that the Remedies Directives as modified
by Directive 2007/66/EC balance the interest of economic operators in protecting their
individual rights and the interest of contracting authorities/entities in limiting frivolous
litigation.
Some Member States perceive the Remedies Directives as quite complex whereas others
perceive them, or at least most of their provisions, as sufficiently/reasonably clear and
precise. One Member State concludes that as the number of preliminary rulings before the
Court of Justice of the EU shows, there will always be room for interpretation. However, that
Member State does not consider a "water-tight" legislation to be necessary and doable.
At the same time no major or urgent need for amendments to the Remedies Directives is
signalled by Member States. Member States do not report on problems in addressing breaches
in EU public procurement law that escape the scope of application of the Remedies
Directives. It is reported, however, that certain areas could be clarified by the Commission,
for example, in the form of guidelines (e.g. fees, requirements for first instance administrative
bodies and their work organisation). Following the adoption of the new legislative package
on public procurement, more clarity would be welcome with regard to the interplay between
the Remedies Directives and the new substantive rules (e.g. references to "contract notice" in
the classic Remedies Directive does not reflect the fact that the new classic procurement
Directive enables a prior information notice to be used, instead of a contract notice, to call for
competition in certain circumstances; it could be clarified how the Remedies Directives apply
to modifications of public contracts and concessions, termination of such contracts and the
light regime for such contracts).
3. Conclusions
Overall, the replies to the various consultations provided a positive assesment of the
functioning of the Remedies Directives.
A clear majority of respondents to the public consultation considered that the Remedies
Directives have had a positive effect on the public procurement process, making it more
transparent, fairer, more open and accessible and more compelling to comply with EU
substantive public procurement rules.
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The majority of respondents to the public consultation as well as Member States agreed that
the Remedies Directives balance the interest of economic operators in protecting their
individual rights and the interest of contracting authorities/entities in limiting frivolous
litigation.
The consultations revealed that many provisions of the Directives are perceived as relevant
across suppliers, contracting authorities and legal practitioners. Based on the replies to the
public consultation, the most relevant provision appears to be the standstill period, followed
by the suspension of the contract award procedure where review proceedings are initiated and
the automatic debrief to tenderers. Even if certain provisions were perceived as being less
pertinent they still contribute to the Remedies Directives' deterrent effect.
The consultations, however, revealed that certain aspects of the Remedies Directives are
unclear. This applies to, among others, matters such as the interplay between the Remedies
Directives and the new legislative package on public procurement and the development of
criteria to be applied to lift the automatic suspension of the conclusion of the contract
following the lodging of a legal action. In this sense, it was in particular suggested that the
Commission issues guidance to provide some clarifications.
The consultations also allowed identifying problems that persist at national level in some
Member States such as, for example, a high number of complaints lodged due to the lack of
court fees, prohibitive court fees and cost of legal representation, too lengthy review
procedures, the instances of non-enforceability of the review decisions, difficulties in
ensuring consistency in the case-law of first instance review bodies, the absence of effective
remedies in procedures below the EU thresholds having a cross-border interest or the
application of restrictive conditions to grant interim measures. In any event, various
respondents to the public consultation indicated that the problems identified are rooted either
in national legislation beyond the Remedies Directives or in national practices rather than
stem from the Remedies Directives.
To conclude, the consultations showed that the Remedies Directives, and in particular the
amendments introduced by Directive 2007/66/EC, generally have met their objectives of
increasing the guarantees of transparency and non-discrimination, allowing effective and
rapid action to be taken when there is an alleged breach of the Procurement Directives and
providing economic operators with the assurance that all tender applications will be treated
equally. The Remedies Directives therefore present a clear EU added value.
The findings of the consultations carried out were used to support the evaluation of the
performance of the Remedies Directives.
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1714470_0070.png
A
NNEX
3 — S
UMMARY OF OPEN ONLINE PUBLIC CONSULTATION
This Annex gives an overview of the answers to the different questions.
The following questions were asked:
1. Have the Remedies Directives as modified by Directive 2007/66/EC helped public
procurement process to become more transparent, fairer, more open and accessible and
more compelling for compliance?
A clear majority of the respondents considered that the Remedies Directives have had a
positive effect on the public procurement process, making it:
•
more transparent (80.59 %):
•
fairer (79.42 %):
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1714470_0071.png
•
more open and accessible (77.65 %):
•
and more compelling to comply with EU substantive public procurement rules
(81.77 %).
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1714470_0072.png
All aspects included, the average percentage of respondents who gave a positive assessment
was
79.86 %.
However, the average percentage of respondents who gave a critical assessment, at least
partially, was
15.73 %.
The percentages for the four abovementioned sub-questions were,
respectively, 15.29 % (transparency), 17.65 % (fairness), 18.24 % (openness and
accessibility) and 11.76% (compliance with EU law).
2. In your view, what are the most relevant provisions of the Remedies Directives as
modified by Directive 2007/66/EC?
Respondents were asked to grade the provisions from 1 to 5, 1 being the least relevant. The
results were as follows:
−
Automatic debrief to bidders at the time of the contract award decision notice:
1
2
3
4
5
No Answer
Answers
11
15
37
49
49
9
Ratio
6.47 %
8.82 %
21.76 %
28.82 %
28.82 %
5.29 %
−
Standstill period to be at least 10 days:
1
2
3
4
5
No Answer
Answers
11
13
29
38
72
7
Ratio
6.47 %
7.65 %
17.06 %
22.35 %
42.35 %
4.12 %
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1714470_0073.png
−
Minimum time limits for applying for a review:
1
2
3
4
5
No Answer
Answers
11
19
50
39
41
10
Ratio
6.47 %
11.18 %
29.41 %
22.94 %
24.12 %
5.88 %
−
Suspension of the contract award procedure where review proceedings are
initiated:
1
2
3
4
5
No Answer
Answers
13
12
32
33
73
7
Ratio
7.65 %
7.06%
18.82 %
19.41 %
42.94 %
4.12 %
−
Ability of an independent review body to render a contract award ineffective:
1
2
3
4
5
No Answer
Answers
12
25
27
36
61
9
Ratio
7.06 %
14.71 %
15.88 %
21.18 %
35.88 %
5.29 %
−
Alternative penalties (fines and shortening of the contract’s duration):
1
2
3
4
5
No Answer
−
Voluntary ex ante transparency notice:
1
2
3
4
5
No Answer
Answers
27
37
42
34
20
10
Ratio
15.88 %
21.76 %
24.71 %
20 %
11.76 %
5.88 %
Answers
30
40
45
33
13
9
Ratio
17.65 %
23.53 %
26.47 %
19.41 %
7.65 %
5.29%
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1714470_0074.png
−
Possibility to award damages to persons harmed by an infringement:
1
2
3
4
5
No Answer
Answers
26
37
40
35
22
10
Ratio
15.29 %
21.76 %
23.53 %
20.59 %
12.94 %
5.88 %
By combining the percentage of respondents that gave grades 4 and 5 to each one of the
provisions, the ranking of the relevant provisions of the Remedies Directives (from the most
relevant to the least relevant) would be the following:
Standstill period to be at least 10 days
Suspension of the contract award procedure where
review proceedings are initiated
Automatic debrief to bidders at the time of the contract
award decision notice
Ability of an independent review body to render a
contract award ineffective
Minimum time limits for applying for a review
Possibility to award damages to persons harmed by an
infringement
Voluntary ex ante transparency notice
Alternative penalties
64.70%
62.35%
57.64%
57.06%
47.06%
33.53%
31.76%
27.06%
3. How long does a review procedure usually last?
On interim measures, the replies indicated the following timelines
−
In first instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
Answers
72
50
12
6
1
29
Ratio
42.35 %
29.41 %
7.06 %
3.53 %
0.59 %
17.06 %
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1714470_0075.png
−
In second instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
−
In third instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
Answers
8
12
11
18
21
100
Ratio
4.71 %
7.06 %
6.47 %
10.59 %
12.35 %
58.82 %
Answers
20
37
30
16
13
54
Ratio
11.76 %
21.76 %
17.65 %
9.41 %
7.65 %
31.76 %
On the setting aside of decisions taken unlawfully, the replies indicated the following
timelines:
−
In first instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
−
In second instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
−
In third instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
Answers
3
9
9
15
39
95
Ratio
1.76 %
5.29 %
5.29 %
8.82 %
22.94 %
55.88 %
Answers
2
26
34
20
39
49
Ratio
1.18 %
15.29 %
20 %
11.76 %
22.94 %
28.82 %
Answers
27
55
20
26
13
29
Ratio
15.88 %
32.35 %
11.76 %
15.29 %
7.65 %
17.06 %
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On the review procedure for damages, the replies indicated the following timelines:
−
In first instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
−
In second instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
−
In third instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
Answers
2
7
3
18
49
91
Ratio
1.18 %
4.12 %
1.76 %
10.59 %
28.82 %
53.53 %
Answers
3
9
16
22
59
61
Ratio
1.76 %
5.29 %
9.41 %
12.94 %
34.71 %
35.88 %
Answers
10
16
15
33
39
57
Ratio
5.88 %
9.41 %
8.82 %
19.41 %
22.94 %
33.53 %
On the review procedure ineffectiveness, the replies indicated the following timelines:
−
In first instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
−
In second instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
Answers
2
15
26
16
49
62
Ratio
1.18%
8.82 %
15.29 %
9.41 %
28.82 %
36.47 %
Answers
21
36
14
26
22
51
Ratio
12.35 %
21.18 %
8.24 %
15.29 %
12.94 %
30 %
76
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−
In third instance:
Less than 1 month
Between 1 and 3 months
Between 3 and 6 months
Between 6 and 12 months
More than 1 year
No Answer
Answers
1
7
7
15
39
101
Ratio
0.59 %
4.12 %
4.12 %
8.82 %
22.94 %
59.41 %
According to the abovementioned percentages, the general trend in Member States is that:
(i)
(ii)
review procedures concerning interim measures (which in most cases are initiated
before the award of the contract) most often take up to 1 month;
review procedures for the setting aside of decisions (which are also in most cases
initiated before the award of the contract) and those for ineffectiveness (which, in
turn, are initiated after the award of the contract) most often take between 1 and 3
months; and
review procedures for damages (which are also initiated after the award of the
contract) most often take more than a year.
(iii)
4. What is/should be the standard for review in public procurement cases in your
jurisdiction?
Answers
53
113
4
Ratio
31.18 %
66.47 %
2.35 %
Exclusively legal matter
Legal and technical matters
No Answer
5. Is there any impact on time and/or standard for review depending on whether the
case is dealt by a specialised review body or an ordinary court?
A large majority of stakeholders considered that there is an impact on time and/or standard
for review depending on whether the case is dealt by a specialised review body or an ordinary
court (74.7
%
of participants). According to most of the replies, procedures before ordinary
courts take longer. Strict time limits to deal with a case can be imposed on specialised
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administrative review bodies whereas they cannot be imposed on courts. Specialised
administrative review bodies also focus on public procurement law and do not deal with other
areas of the law. This specialisation may result in higher standards of adjudication.
Yes
Partly
No
No Answer
The following examples were given by respondents:
-
In Austria:
a recent revision of respective Viennese Federal State Law provides for
ordinary courts in review procedures. Also, the prevailing system of specialised
administrative bodies (specialists covering various areas of expertise chaired by a judge) was
dropped in 2014. Since then, decision fall to regular court senates, composed of judges
exclusively. As a consequence, direct clarification of preliminary technical questions is no
longer feasible, but subject to comprehensive and time-consuming gathering of evidence.
-
In Belgium:
two different courts are competent for interim measures and setting aside of
decisions. The tendering decisions of administrative authorities are reviewed by the Council
of State. The tendering decisions of contracting authorities that are not administrative
authorities are reviewed by the ordinary courts. Interim measures before the Council of State
take one month, but before the ordinary courts, it can take between two and four months.
After the decision of the Council of State no appeal is possible. Before the ordinary courts
there are always three instances. The Council of State has judges specialised in public
procurement, but the ordinary courts rarely have judges specialised in this matter.
-
In Cyprus:
the Tenders Review Authority is much quicker than judicial review by the
Supreme Court (decisions are taken within three to six months whereas courts need two to
three years).
-
In Ireland:
given that procurement cases are heard in the High Court, the time for review
can be lengthy, often in excess of one year.
- In
Germany:
Vergabekammern
decide much faster than German ordinary courts because of
time limits imposed on them (five weeks from the submission of a complaint).
-
In Poland:
disputes are solved by a specialised administrative review body within 15 days
from the submission of a complaint. Less formalised forms of communication and less
formalised and faster collection and evaluation of evidence by the review body compared to
ordinary courts contribute however to a faster review by the review body.
- According to
Romania’s
relevant national laws, the review body must deliver a reasoned
decision within no more than 30 days from the date when the complaint was submitted.
Whereas an ordinary court is only required to hand down its sentences within a ‘reasonable’
term (which, depending on the circumstances, may take several months).
-
In Spain:
disputes are solved by specialised administrative review bodies within 15-20 days
from the submission of a complaint whereas courts would need 1 year to solve such disputes.
-
In the UK:
specialised construction adjudication bodies (the Technology and Construction
Court (TCC) — a specialist court of the Queen’s Bench Division of the High Court) provide
for much speedier dispute resolution than ordinary courts. The TCC judges and officials have
Answers
100
27
24
19
Ratio
58.82 %
15.88 %
14.12 %
11.18 %
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developed appreciable expertise in managing and trying public procurement cases. The
typical time from issue of proceedings to trial in the TCC is between 5-12 months.
6. To what extent are the Remedies Directives as modified by Directive 2007/66/EC
sufficiently clear and precise?
Significantly
Moderately
Not at all
No Answer
Answers
70
81
7
12
Ratio
41.18 %
47.65 %
4.12 %
7.06 %
In this context, the
Federation of German Industries (BDI)
stated that ‘the
rules of the
Remedies Directives are clear and basically well shaped. Especially, the principle of effective
review laid down in Article 1 of the Directives is of fundamental importance and absolutely
indispensable for public procurement and the Internal Market as a whole. Certain problems
reported (…) are very often subject to insufficiencies of the relevant national transposition’.
The
Law Society of England and Wales
reported that ‘the
provisions are generally
sufficiently clear and precise. However, the framework of the Directives itself would benefit
from consolidation and tidying-up, for example there are quite a few cross-references
between articles. More certainty on how ineffectiveness might operate would be welcome,
although this may be best addressed by Member States through the publication of guidance’.
The
Procurement Lawyers’ Association
of the opinion that ‘on
the whole the current
Directives are reasonably clear. There are a small number of areas where more precise
wording would assist in their interpretation".
The
Italian Council of Engineers
claimed that ‘despite
the significantly positive impact of
the remedies provided by Directive 2007/66/EC, in some of its parts the Directive appears
too generic an broad, leaving the State to choose whether to adapt at their discretion many
aspects of the remedies concerned to their internal system of laws or to execute such
remedies
‘as
they are’’.
Some respondents also submitted that the structure of the Remedies Directives is not clear as
to which articles correspond to pre-contractual and which to post-contractual remedies.
Some respondents also underlined that more clarity would be welcome in a number of areas
related to institutional aspects (for example, professional standards for members of a
specialised review body), procedural aspects (criteria for lifting the automatic suspension, for
granting interim measures and to award damages) and the interplay between the Remedies
Directives and the new Public Procurement Directives (how the Remedies Directives apply to
the modification and termination of public contracts and concessions and the so-called ‘light
regime’).
7. To what extent do the Remedies Directives as modified by Directive 2007/66/EC
balance the interest of economic operators in ensuring the effectiveness of public
procurement law and the interest of contracting authorities / entities in limiting
frivolous litigation?
The balance is too much on the interest of economic
operators
The balance is on the middle
The balance is too much on the interest of
contracting authorities / entities
No Answer
Answers Ratio
40
23.53 %
97
27
6
57.06 %
15.88 %
3.53 %
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The following reasons were given by those who consider the balance to be equal:
-
While certain provisions are in the interest of economic operators (e.g. standstill
period, automatic suspension, ineffectiveness) other provisions level the balance (e.g.
review periods, VEAT notices and alternative penalties).
Frivolous litigation might occur but it is not a substantial problem in markets where
an economic operator is typically interested in cooperation with the contracting
authority.
The protection of public interest is taken into account in issuing interim measures.
The consequence of issuing a claim (e. g. cost or cross undertaking in damages) tend
to ensure that both parties act quickly and only in appropriate circumstances.
-
-
-
On the other hand, the following reasons were given by those who consider the balance to
favour the interest of contracting authorities/entities:
-
-
-
In some cases it is too expensive to file a complaint.
In practice, a lower standard of proof is required from contracting authorities/entities.
In disputes related to a description of the subject-matter of a contract the lack of
clarity is at the risk of an economic operator.
Finally, the following reasons were given by those who consider the balance to favour the
interest of economic operators:
-
-
-
Because of the suspension of the contract award procedure where review proceedings
are initiated, many public projects are postponed.
The Remedies Directives does not contain any provision preventing and sanctioning
abuses of the remedy system by bidders.
In some instances contractors challenge decisions to award a contract to a new
contractor on insignificant grounds in an attempt to overturn or delay the contract
award so that they remain under contract.
8. To your knowledge, has the remedy system in your Member State caused delays in
the award of public contracts? What was in your view the main reason for the delay
(other than the use of the remedy itself)?
Concerning the existence of delays in the award of public contracts due to remedies,
respondents consider:
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Yes, frequently
Only occasionally
No
No Answer
Answers
68
76
19
7
Ratio
40%
44.71 %
11.18 %
4.12 %
Concerning the reasons for those delays, the following reasons were put forward:
National procedural rules not laid down in the
Remedies Directives
Conduct of parties
Ineffectiveness of the national judicial system
Other (please specify)
No Answer
Answers Ratio
11
6.47 %
60
29
32
38
35.29 %
17.06 %
18.82 %
22.35 %
Among ‘other reasons’ the following were given:
-
-
-
-
lack of sufficient staff in review bodies.
delays in contracting authorities submitting a file to a review body,
the national procedural rules and/or the way that the courts list cases for trial,
contracting authorities do not anticipate review procedures when they set deadlines
for their tender procedures.
9. Should interim measures be considered an effective remedy?
Answers
90
53
20
7
Ratio
52.94 %
31.18 %
11.76 %
4.12 %
Yes
Yes, but only exceptionally
No
No Answer
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10. Should a standstill period be considered an effective remedy?
Answers
123
23
18
6
Ratio
72.35 %
13.53 %
10.59 %
3.53 %
Yes
Yes, but only exceptionally
No
No Answer
Overall, the standstill period was the remedy that most respondents unconditionally
considered to be the most effective one.
11. Should ineffectiveness be considered an effective remedy, in particular helping to
tackle direct awards?
Answers
87
60
11
12
Ratio
51.18 %
35.29 %
6.47 %
7.06 %
Yes
Yes, but only exceptionally
No
No Answer
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12. Should alternative penalties be considered an effective remedy?
Answers
56
74
33
7
Ratio
32.94 %
43.53 %
19.41 %
4.12 %
Yes
Yes, but only exceptionally
No
No Answer
Overall, alternative penalties were considered by respondents to be the least effective remedy.
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13. Should damages be considered an effective remedy?
Answers
71
66
25
8
Ratio
41.76 %
38.82 %
14.71 %
4.71 %
Yes
Yes, but only exceptionally
No
No Answer
14. Do remedies exist for contracts below the EU thresholds in your jurisdiction?
Yes, they are the same as for contracts above the
EU thresholds
Yes, but they are different from those intended
for contracts above the EU thresholds (please
specify the differences)
No
No Answer
Answers Ratio
61
35.88 %
79
46.47 %
15
15
8.82 %
8.82 %
In most Member States remedies for contracts below the EU thresholds are different than
those above the thresholds. The lack of effective remedies in procedures below the EU
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thresholds having a cross-border interest was mentioned as one of persisting problems in
addressing breaches of public procurement law.
The respondents made the following remarks on remedies for contracts below the EU
thresholds:
Austria:
for contracts below the thresholds, there are shorter periods and lower court fees.
Belgium:
there is no obligatory standstill period for contracts below the thresholds.
Ireland:
while there is no specific regime for below threshold procurement remedies, general
administrative law on remedies are available (e. g. certiorari, mandamus, declarations, etc.).
Finland:
ineffectiveness, alternative penalties and standstill regulation (automatic suspension
and standstill period) apply only above the EU thresholds.
France:
for contracts below the thresholds, irrespectively of the nature of the contract and the
existence of cross-border interest, there is no obligation to give an automatic debrief to
bidders at the time of the contract award decision notice and there is no standstill period.
Germany:
for contracts below the thresholds, irrespectively of the nature of the contract and
the existence of cross-border interest, there is no standstill period, no automatic suspension,
no mandatory information to those who will not be awarded the contract. In Germany it is
significantly more difficult to be successful in a remedies procedure below the thresholds as
compared to above the thresholds.
Poland:
there are limited numbers of actions against which economic operators can complain
for public contracts below the thresholds (e.g. choice of negotiated procedure without
publication, exclusion of the appellant from the contract award procedures).
Romania:
there is a shorter standstill period and time limit for filling complaints related to
public contracts below the thresholds.
UK:
there is no specific regime for below threshold procurements in England and Wales;
therefore there is a lack of standstill period and of automatic suspension. In those cases award
decisions can be challenged by way of judicial review in the same way as any other decisions
under public law. Claims for below thresholds procurements are rare (cost of litigation is
disproportionate for low value procurements and it is difficult to demonstrate breaches of
law, because the claimant must first prove that there is a certain cross-border interest).
15. Would alternative dispute resolution (ADR)/mediation prove operational in the
context of public procurement disputes?
Answers
83
72
15
Ratio
48.82 %
42.35 %
8.82 %
Yes
No
No Answer
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The
General Council of the Bar of England & Wales
submits that ‘mediation
works well
where settlements are confined to awards of damages. The situation is more complex where
other remedies are in play, not least because the remedies are likely to affect others such as
the winning bidder and the users of any service and these parties are often not involved in the
process. There may be legitimate public policy concerns as to whether mediation should ever
be deployed in such cases involving public policy issues that ought not to be resolved in
confidential mediation’.
The
Law Society of England and Wales
adds that ‘arbitration
or mediation can be as
expensive as courts proceedings. These dispute settlement methods are also private and
confidential which is inappropriate for procurement complaints’.
The
Austrian Economic Chamber
considers that mandatory ADR would be useful as it
‘allows
the candidates and bidders to present their points of view in a less formalistic
environment and to find out, if their request is substantiated or not without starting a formal
procurement review procedure in court’.
According to
CMS Hungary and Foot Anstey
LLP,
considering reputational risks for bidders related with complaints, a less formal
procedure would help to preserve commercial relationship and enable the parties to work
together again in the future.
16. Do court fees apply to public procurement cases in your jurisdiction?
Yes
No
No Answer
Answers
138
23
9
Ratio
81.18 %
13.53 %
5.29 %
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According to the respondents, there are no court frees in Bulgaria, Croatia, Cyprus, Estonia,
France, Germany, Lithuania, Spain and Sweden.
17. Do administrative fees apply to public procurement cases in your jurisdiction?
Answers
80
78
12
Ratio
47.06 %
45.88 %
7.06 %
Yes
No
No Answer
18. If the answer to question 16 or 17 is affirmative, would you define the level of fees as
dissuasive for users of the review and justice system?
Yes
(if possible, please specify)
No
No Answer
Answers
64
86
20
Ratio
37.65 %
50.59 %
11.76 %
Respondents from the UK considered that the fee of up to £10 000 (roughly EUR 13 000 in
2016) for commencement of proceedings is clearly dissuasive.
19. Are there any other costs (such as the cost of legal advice and representation) that
may have an impact on access to justice in your jurisdiction?
Answers
117
42
11
Ratio
68.82 %
24.71 %
6.47 %
Yes (if possible, please specify)
No
No Answer
A large majority of participants consider costs of legal advice and representation as having an
impact on access to justice. According to some respondents, even if not mandatory, legal
advice seems to be sought in most cases due to the complexity of public procurement law.
According to some respondents, in some Member States legal representation is mandatory in
second instance. According to some respondents, in few Member States (Cyprus, Austria)
economic operators are not reimbursed for costs when winning the case.
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Some respondents stated that in Poland, the cost of legal advice and representation is high
because there are only few lawyers who specialise in public procurement. On the other hand,
it is claimed that in Latvia legal market is competitive and fees for advice are not exorbitant
and are not an obstacle to accessing justice.
According to
Public Procurement Lawyers’ Association,
legal costs and disbursement of a
procurement case that usually goes to trial are usually ‘over
six figures’.
Furthermore, it is
uncommon for lawyers specialising in public procurement to act on a conditional fee basis
(i.e. where the payment of the lawyer’s costs depends on achieving a settlement or success at
trial) where it is likely to be difficult to assess the merits of the claim at the outset of the
matter.
According to the
Italian National Anticorruption Authority,
for contracts below a certain
value it is not worthwhile to file a complaint because for low value contracts lawyers’ fees
are too expensive. Participants also underlined that for voluntary organisations and SMEs the
costs of litigation is a significant factor explaining why many SMEs decide not to bring
proceedings.
20. Do you think that there are still problems in addressing breaches in EU public
procurement law?
Answers
107
52
11
Ratio
62.94 %
30.59 %
6.47 %
Yes (please briefly describe such problems)
No
No Answer
The respondents perceived the Remedies Directives as relevant to address infringements of
EU public procurement law to the extent that, in general, those who still see problems in
addressing breaches in EU public procurement law, gave at the same time examples of how
the situation could be improved.
Some respondents highlighted a number of problems related to institutional and procedural
aspects:
•
the absence of guarantees at EU level for independence of specialised administrative
review bodies;
•
the absence of explicit provisions in the Remedies Directives on how to protect
business secrets in the review procedure;
•
excessive court fees and costs of legal advice;
•
non-enforceability of judgments in some Member States; and
•
the absence of effective remedies in procedures below the EU thresholds having a
cross-border interest and the shortness of the time limits for pre-contractual and
post-contractual remedies.
Respondents also pointed out problems not related to the Remedies Directives as such:
•
the fear of being blacklisted;
•
the general lack of knowledge of public procurement rules on the part of contracting
authorities; and
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•
the general lack of awareness of the law by contractors who are often unaware of the
tight timescales for challenges and fail to seek timely legal advice.
Contributions received also allowed to identify problems that persist at national level. In fact,
stakeholders often repeated that problems in addressing breaches in EU public procurement
law persist at national level rather than stem from EU guarantees from the Remedies
Directives. One example of this would be (i) Member States where time-limit for seeking
review is significantly longer than the one laid down in the Remedies Directives which in
some cases may create undue delays to the detriment of contracting authorities and successful
tenderers. Other examples included in particular: (ii) a high number of complaints lodged due
to the lack of court fees, (iii) prohibitive court fees and cost of legal representation, (iv) too
lengthy review procedures that result from an insufficient allocation of human resources by
Member States to allow the proper functioning of the review system, (v) the instances of non-
enforceability of the review decisions, (vi) difficulties in ensuring consistency in the case-law
of first instance review bodies, (vii) the absence of effective remedies in procedures below
the EU thresholds having a cross-border interest and (viii) the application of restrictive
conditions to grant interim measures.
Respondents mentioned the following problems rooted in national law:
Bulgaria:
Damages are reviewed by courts in Bulgaria. It is reported that the shortcomings of
the national judicial system limits the efficiency of this remedy.
Denmark:
Interim measures are hardly ever used.
Ireland:
The lack of clarity on the lifting of automatic suspension by courts is perceived as a
problem.
Italy:
The 35-day standstill period stipulated in national legislation transposing the Remedies
Directives sometimes causes significant delays in procurement procedures.
Finland:
The length of review proceedings is perceived as disproportionate (e.g. a year in
first instance before the Market Court and two years in second instance). A control of public
procurement by a competent supervising authority would be useful and could ease the
workload of the Market Court.
Latvia:
The lack of predictability and inconsistent jurisprudence from the first instance
review body is perceived as a problem.
Netherlands:
It is reported that in 90 % of cases courts rule in favour of the contracting
authority. Decisions in favour of competitors are based on indisputable grounds.
Poland:
In Poland review by the National Chamber of Appeal is rapid. However, due to the
fact that the National Chamber of Appeal should examine the appeal within 15 days from the
date of its submission, it rarely calls experts. The lack of consistent jurisprudence from the
National Chamber of Appeal is also perceived as a weakness in the system. Common courts,
due to the lack of specialised chambers and time constraints, are in a difficult position to
thoroughly investigate public procurement matters in second instance. Consequently, a small
number of complaints are lodged against judgments of the National Chamber of Appeal.
Romania:
A very high number of complaints are lodged. The main problem is to distinguish
between justified and frivolous complaints.
Sweden:
There are no court fees in Sweden. This results in frequent litigation, which does
not however cause any major blockage in the review system.
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UK:
Repeated case-law in the UK suggests that courts are reluctant to continue automatic
suspension even where there is a
prima facie
case for breach of EU procurement law.
Moreover, decisions tend to favour the contracting authorities. In general terms, there is a
prevailing view that damages are an adequate and effective remedy, which undermines the
effectiveness of the review procedures. The lack of a administrative review body is also
perceived as a problem in the UK. The costs of legal representation are prohibitive, in
particular for smaller economic operators. The court fee typically payable on the issue of a
procurement claim is £10 000 (roughly EUR 13 000 in 2016), which is the highest on the fee
scale. Other court fees are payable as the claim progresses, including in most cases a hearing
fee of £1 090 and £155 (roughly EUR 1400 and EUR 200 respectively in 2016) in respect of
any interim applications that are made before trial. No declaration of contract being
ineffective has been made in the UK so far.
77
77
According to the most recent publicly available information, after the end of a public consultation one
contract was declared ineffective in the UK.
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A
NNEX
4 — Q
UESTIONNAIRE CIRCULATED
(
DEADLINE TO REPLY
: 23/11/2015)
The length of review procedures:
TO
M
EMBER
S
TATES
ON
15/10/2015
- What is the average length of review procedures in your Member States, including
first and second instance review?
- Are there any provisions at national level that govern the length of review
procedures?
- Are there any examples of the remedy system causing delays in the award of public
contracts?
- Have you identified systematic abuses of appeals to the detriment of the timely
functioning of the system in your country?
Costs and their impact on access to justice:
- Do you consider costs of review (including lawyers’ fees) in your Member States
as properly ensuring access to justice or rather dissuasive?
Institutional aspect:
- Is there any impact on time and/or standard for review depending on whether the
case is dealt with by a specialised review body or an ordinary court?
The standard of review:
- What is the standard of review in your Member States, including first and second
instance review? Are both legal and technical matters adjudicated?
Factual information:
- What is the number of cases dealt in first instance from 2012 to 2014?
- What is the number of appeals to the decisions and their success rate?
The Remedies Directives’ EU added value / Way forward:
- In the absence of the Remedies Directives, would it be possible to protect bidders’
individual rights?
- Are there still problems in addressing breaches in EU public procurement law that
escape the scope of application of the Remedies Directives? Please give examples.
- What could be done to improve the functioning of the remedies system in your
country? Would it be necessary to amend the text of the Remedies Directives or to
adopt non-legislative measures for a greater effectiveness in the system?
91
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Overall effectiveness of the Remedies Directives:
- To what extent do the Remedies Directives as modified by Directive 2007/66/EC
balance the interest of economic operators in protecting their individual rights and
the interest of contracting authorities / entities in limiting frivolous litigation?
- To what extent are the Remedies Directives as modified by Directive 2007/66/EC
sufficiently clear and precise?
- Interim measures, standstill period, alternative penalties, ineffectiveness and
damages — are they effective to palliate breaches of EU public procurement rules?
92
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1714470_0093.png
A
NNEX
5 — N
ATIONAL MEASURES TRANSPOSING
D
IRECTIVE
2007/66/EC
National measures transposing Directive 2007/66/EC were notified by the Member States and
since then, some measures have been amended or even replaced. Some Member States
notified the national transposition measures after the deadline, which expired on 20
December 2009. For details, see the table below.
Member state
Belgium
Title communication
Notification
SERVICE PUBLIC FEDERAL CHANCELLERIE DU
PREMIER MINISTRE — 10 FEVRIER 2010. — Arrêté
royal modifiant certains arrêtés royaux exécutant la loi du
16/02/2010
24 décembre 1993 relative aux marchés publics et à
certains marchés de travaux, de fournitures et de services.
Loi du 23 décembre 2009 introduisant un nouveau livre
relatif à la motivation, à l’information et aux voies de
recours dans la loi du 24 décembre 1993 relative aux
30/12/2009
marchés publics et à certains marchés de travaux, de
fournitures et de services
Bulgaria
Зако�½ за изме�½е�½ие и допъл�½е�½ие �½а Зако�½а за
обществе�½ите поръчки
(об�½.,
ДВ, бр.
28
от
2004
г.;
изм., бр.
53
от
2004
г., бр.
31, 34
и
105
от
2005
г., бр.
09/07/2010
18, 33, 37
и
79
от
2006
г., бр.
59
от
2007
г., бр.
94, 98
и
102
от
2008
г. и бр.
24
и
82
от
2009
г.)
Zákonné opatření Senátu
č.
341/2013 Sb., kter�½m se mění
zákon
č.
137/2006 Sb., o veřejn�½ch zakázkách, ve znění
pozdějších předpisů, a zákon
č.
55/2012 Sb., kter�½m se
mění zákon
č.
137/2006 Sb., o veřejn�½ch zakázkách, ve
11/11/2014
znění pozdějších předpisů
Czech
Republic
Zákon
č.
303/2013 Sb., kter�½m se mění některé zákony v
11/11/2014
souvislosti s přijetím rekodifikace soukromého práva
Zákon
č.
167/2012 Sb., kter�½m se mění zákon
č.
499/2004
11/11/2014
Sb., o archivnictví a spisové službě a o změně někter�½ch
93
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1714470_0094.png
zákonů, ve znění pozdějších předpisů, zákon
č.
227/2000
Sb., o elektronickém podpisu a o změně někter�½ch dalších
zákonů (zákon o elektronickém podpisu), ve znění
pozdějších předpisů, a další související zákony
Zákon
č.
89/2012 Sb., občansk�½ zákoník
11/11/2014
Zákon
č.
55/2012 Sb., kter�½m se mění zákon
č.
137/2006
11/11/2014
Sb., o veřejn�½ch zakázkách, ve znění pozdějších předpisů
Zákon
č.
258/2011 Sb., kter�½m se mění zákon
č.
137/2006
11/11/2014
Sb., o veřejn�½ch zakázkách, ve znění pozdějších předpisů
Zákon
č.
179/2010 Sb., kter�½m se mění zákon
č.
137/2006
Sb., o veřejn�½ch zakázkách, ve znění pozdějších předpisů,
11/11/2014
a některé další zákony
Zákon
č.
281/2009 Sb., kter�½m se mění některé zákony v
11/11/2014
souvislosti s přijetím daňového
řádu
Zákon
č.
417/2009 Sb., kter�½m se mění zákon
č.
137/2006
Sb., o veřejn�½ch zakázkách, ve znění pozdějších předpisů,
08/02/2010
a některé další zákony
Zákon
č.
110/2009 Sb., kter�½m se mění zákon
č.
130/2002
Sb., o podpoře v�½zkumu a v�½voje z veřejn�½ch prostředků a
o změně někter�½ch souvisejících zákonů (zákon o podpoře
08/02/2010
v�½zkumu a v�½voje), ve znění pozdějších předpisů, a další
související zákony
Zákon
č.
6/2002 Sb., o soudech, soudcích, přísedících a
státní správě soudů a o změně někter�½ch dalších zákonů
08/02/2010
(zákon o soudech a soudcích)
Zákon
č.
273/1996 Sb., o působnosti Úředu pro ochranu
08/02/2010
hospodářské soutěže
Zákon
č.
509/1991 Sb., kter�½m se mění, doplňuje a
08/02/2010
94
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1714470_0095.png
upravuje občansk�½ zákoník
Zákon
č.
40/1964 Sb., občansk�½ zákoník
Concordance table 32007L00 66_081014
08/02/2010
14/10/2008
Zákon
č.
76/2008 Sb., kter�½m se mění zákon
č.
137/2006
Sb., o veřejn�½ch zakázkách, ve znění zákona
č.
110/2007
14/10/2008
Sb.
Zákon
č.
30/2008 Sb., kter�½m se mění zákon
č.
139/2006
Sb., o koncesních smlouvách a koncesním
řízení
(koncesní
14/10/2008
zákon)
Zákon
č.
344/2007 Sb., kter�½m se mění zákon
č.
513/1991
Sb., obchodní zákoník, ve znění pozdějších předpisů, a
14/10/2008
zákon
č.
200/1990 Sb., o přestupcích, ve znění pozdějších
předpisů
Zákon
č.
139/2006 Sb., o koncesních smlouvách a
14/10/2008
koncesním
řízení
(koncesní zákon)
Zákon
č.
137/2006 Sb., o veřejn�½ch zakázkách
Zákon
č.
500/2004 Sb., správní
řád
Zákon
č.
150/2002 Sb., soudní
řád
správní
14/10/2008
14/10/2008
14/10/2008
Zákon
č.
30/2000 Sb., kter�½m se mění zákon
č.
99/1963
Sb., občansk�½ soudní
řád,
ve znění pozdějších předpisů, a
14/10/2008
některé další zákony
Zákon
č.
519/1991 Sb., kter�½m se mění a doplňuje občansk�½
14/10/2008
soudní
řád
a notářsk�½
řád
Zákon
č.
513/1991 Sb., obchodní zákoník
14/10/2008
95
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1714470_0096.png
Zákon
č.
133/1982 Sb., kter�½m se mění a doplňuje občansk�½
14/10/2008
soudní
řád
Zákon
č.
99/1963 Sb., občansk�½ soudní
řád
Denmark
Germany
Estonia
Ireland
Lov om håndhævelse af udbudsreglerne mv.
Gesetz zur Modernisierung des Vergaberechts
RIIGIHANGETE SEADUS 1
14/10/2008
18/05/2010
13/01/2010
17/05/2010
European Communities (Award of Contracts by Utility
06/04/2010
Undertakings) (Review Procedures) Regulations 2010
European Communities (Public Authorities Contracts)
06/04/2010
(Review Procedures)Regulations 2010
Greece
Δικαστική προστασία κατά τη σύ�½αψη δημόσιω�½
συμβάσεω�½ − Ε�½αρμό�½ιση της ελλη�½ικής �½ομοθεσίας με τη�½
Οδηγία
89/665/ΕΟΚ
του Συμβουλίου της
21ης
Ιου�½ίου
1989 (L 395)
και τη�½ Οδηγία
92/13/ΕΟΚ
του Συμβουλίου
01/10/2010
της
25ης
Φεβρουαρίου
1992 (L 76),
όπως τροποποιήθηκα�½
με τη�½ Οδηγία
2007/66/ΕΚ
του Ευρωπαϊκού Κοι�½οβουλίου
και του Συμβουλίου της
11ης
Δεκεμβρίου
2007 (L 335).
Ley Foral 3/2013, de 25 de febrero, de modificación de la
04/03/2013
Ley Foral 6/2006, de 9 de junio, de Contratos Públicos
Ley 34/2010, de 5 de agosto, de modificación de las Leyes
30/2007, de 30 de octubre, de Contratos del Sector
Público, 31/2007, de 30 de octubre, sobre procedimientos
de contratación en los sectores del agua, la energía, los
06/09/2010
transportes y los servicios postales, y 29/1998, de 13 de
julio, reguladora de la Jurisdicción Contencioso-
Administrativa para adaptación a la normativa
comunitaria de las dos primeras
Spain
France
Décret No 2009-1456 du 27 novembre 2009 relatif aux
04/12/2009
procédures de recours applicables aux contrats de la
96
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1714470_0097.png
commande publique
Ordonnance No 2009-515 du 7 mai 2009 relative aux
procédures de recours applicables aux contrats de la
05/06/2009
commande publique
LOI No 2008-735 du 28 juillet 2008 relative aux contrats
02/09/2008
de partenariat (1)
Croatia
Zakon o izmjenama i dopunama Zakona o javnoj nabavi
Zakon o koncesijama
05/07/2013
19/06/2013
Zakon o Državnoj komisiji za kontrolu postupaka javne
19/06/2013
nabave
Zakon o javnoj nabavi
Italy
19/06/2013
Attuazione della direttiva 2007/66/CE che modifica le
direttive 89/665/CEE e 92/13/CEE per quanto riguarda il
14/04/2010
miglioramento dell’efficacia delle procedure di ricorso in
materia d’aggiudicazione degli appalti pubblici.
Ο περί τω�½ Διαδικασιώ�½ Προσφυγής στο�½ Τομέα της
22/11/2010
Σύ�½αψης τω�½ Δημοσίω�½ Συμβάσεω�½ Νόμος του
2010.
Ministru kabineta 2010.gada 28.septembra noteikumi
Nr.904 ‘Noteikumi par koncesijas procedūras paziņojumu
14/10/2010
saturu, to iesniegšanas kārtību un paziņojumu veidlapu
paraugiem’
Ministru kabineta 2010.gada 28.septembra noteikumi Nr.
904 ‘Noteikumi par koncesijas procedūras paziņojumu
04/10/2010
saturu, to iesniegšanas kārtību un paziņojumu veidlapu
paraugiem’
Grozījumi Publiskās un privātās partnerības likumā
03/09/2010
Cyprus
Latvia
97
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1714470_0098.png
Sabiedrisko pakalpojumu sniedzēju iepirkumu likums
03/09/2010
Ministru kabineta 2010.gada 27.jūlija noteikumi Nr.698
‘Noteikumi par publisko iepirkumu paziņojumu saturu un
10/08/2010
sagatavošanas kārtību’
Publisko iepirkumu likums
Lithuania
18/06/2010
Lietuvos Respublikos viešųjų pirkimų
įstatymo
2, 4, 7, 8,
10, 11, 16, 18, 19, 22, 23, 24, 27, 28, 30, 31, 33, 38, 39,
40, 43, 45, 49, 57, 62, 74, 85, 86, 89, 92 straipsnių
31/08/2011
pakeitimo ir papildymo,
įstatymo
papildymo 151
straipsnių
įstatymas
Nr. XI-395
Lietuvos Respublikos civilinio proceso kodekso pakeitimo ir
31/08/2011
papildymo
įstatymas
Nr. XI-1480
Lietuvos Respublikos viešųjų pirkimų
įstatymo
93, 94, 95,
951 ir 952 straipsnių pakeitimo ir papildymo
įstatymas
Nr.
31/08/2011
XI-1487
Lietuvos Respublikos viešųjų pirkimų
įstatymo
2, 4, 6, 8, 9,
10, 18, 19, 20, 21, 22, 23, 24, 25, 27, 33, 37, 38, 40, 41,
56, 57, 71, 73, 81, 82, 83, 85, 86, 91, 92, 94, 95(1), 97
28/02/2011
straipsnių, V skyriaus pavadinimo, 1, 2, 4 priedėlių ir
priedo pakeitimo ir papildymo
įstatymas
Nr. XI-1255
Lietuvos Respublikos koncesijų
įstatymo,
Vietos savivaldos
10/03/2010
įstatymo
pakeitimo ir papildymo
įstatymas
Nr. X-749
Lietuvos
Respublikos
civilinio
proceso
kodekso
patvirtinimo,
įsigaliojimo
ir
įgyvendinimo įstatymas
Nr. IX-
10/03/2010
743
Lietuvos Respublikos viešųjų pirkimų
įstatymo
2, 6, 7, 8,
10, 13, 15, 18, 22, 23, 24, 31, 32, 39, 41, 54, 58, 78, 85,
10/03/2010
89, 90, 91, 92, 93, 94, 95, 96, 97 straipsnių, V skyriaus
pavadinimo ir priedo pakeitimo ir papildymo,
Įstatymo
98
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1714470_0099.png
papildymo 21(1), 94(1), 95(1), 95(2) straipsniais ir 98, 99,
100 straipsnių pripažinimo netekusiais galios
įstatymas
Nr. XI-678
Lietuvos Respublikos viešųjų pirkimų
įstatymo
2, 6, 7, 8, 9,
10, 11, 12, 16, 17, 18, 19, 22, 23, 24, 27, 28, 30, 31, 33,
38, 39, 41, 51, 57, 58, 70, 72, 75, 79, 81, 93, 95, 98, 100
10/03/2010
straipsnių, IV skyriaus, 1 ir 2 priedėlių ir priedo pakeitimo
ir papildymo
įstatymas
Nr. X-1673
Lietuvos Respublikos civilinio kodekso pavirtinimo,
10/03/2010
įsigaliojimo
ir
įgyvendinimo įstatymas
Nr. VIII-1864
Lietuvos Respublikos viešųjų pirkimų
įstatymo
pakeitimo
10/03/2010
įstatymas
Nr. X-471
Luxemburg
Règlement grand-ducal du 22 janvier 2011 portant
exécution de l’Article 19 de la loi du 10 novembre 2010
02/02/2011
instituant les recours en matière de marchés publics.
Loi du 10 novembre 2010 instituant les recours en matière
12/11/2010
de marchés publics.
Hungary
Az
igazságügyi
és
rendészeti
miniszter
5/2009. (III. 31.) IRM rendelete a közbeszerzési és
21/01/2010
tervpályázati hirdetmények, a bírálati összegezések és az
éves statisztikai összegezések mintáiról
2008. évi CVIII. törvény a közbeszerzésekről szóló 2003.
21/01/2010
évi CXXIX. tör vény módosításáról
2003. évi CXXIX. törvény a közbeszerzésekről
Malta
Public Procurement (Amendment) Regulations, 2013
21/01/2010
20/02/2013
Public Procurement of Entities operating in the Water,
29/10/2012
99
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1714470_0100.png
Energy, Transport and Postal Services Sectors Regulations,
2005
SUBSIDIARY
LEGISLATION
174.04
PUBLIC
PROCUREMENT
REGULATIONS
08/10/2012
LEGAL NOTICE 296 of 2010, as amended by Legal
Notices 47, 104, 255 and 312 of 2012.
FINANCIAL ADMINISTRATION AND AUDIT ACT(CAP.
174)Public Procurement (Amendment No 4) Regulations,
02/10/2012
2012
L.N. 107 of 2011
FINANCIAL ADMINISTRATION AND AUDIT ACT
(CAP. 147)
Public Procurement of Entities operating in the Water,
02/04/2011
Energy, Transport and Postal Services Sectors
(Amendment)
Regulations, 2011
L.N. 296 of 2010 Public Procurement Regulations 2010
24/05/2010
ARRANGEMENT OF REGULATIONS
L.N. 281 of 2010 FINANCIAL ADMINISTRATION AND
AUDIT ACT (CAP. 174) Public Procurement Regulations,
10/05/2010
2010
Netherlands
Wet van 28 januari 2010 tot implementatie van de
rechtsbeschermingsrichtlijnen
aanbesteden
(Wet
16/02/2010
implementatie rechtsbeschermingsrichtlijnen aanbesteden)
Gesetz vom 13. Dezember 2013, mit dem ein Gesetz über
den Rechtsschutz bei der Vergabe von Aufträgen
10/01/2014
(Kärntner Vergaberechtsschutzgesetz 2014 — K-VergRG
2014) erlassen wird
Wiener Vergaberchtsschutzgesetz 2014
07/11/2013
Austria
100
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1714470_0101.png
Landesgesetz, mit dem das Oö. Vergaberechtsschutzgesetz
2006 geändert wird (Oö. Vergaberechtsschutzgesetz-
02/11/2010
Novelle 2010)
NÖ Vergabe-Nachprüfungsgesetz
Änderung des Kärntner Vergaberechtsschutzgesetz
10/09/2010
20/08/2010
Gesetz vom 17. März 2007, mit dem das Salzburger
05/07/2010
Vergabekontrollgesetz 2007 geändert wird
Gesetz
über
eine
Vergabenachprüfungsgesetzes
Änderung
des
26/05/2010
Gesetz vom 9. Februar 2010, mit dem das Steiermärkische
Vergaberechtsschutzgesetz — StVergRG geändert wird —
03/05/2010
Vergaberechtsschutz-gesetznovelle 2010
Gesetz vom 17. Dezember 2009, mit dem das Tiroler
26/03/2010
Vergabenachprüfungsgesetz 2006 geändert wird
Gesetz, mit dem das Wiener Vergaberechtsschutzgesetz
16/03/2010
2007 geändert wird
Gesetz,
mit
dem
das
Burgenländisches
16/03/2010
Vergaberechtsschutzgesetz geändert wird
Bundesvergabegesetz-Novelle 2009
16/03/2010
Poland
Ustawa z dnia 2 grudnia 2009 r. o zmianie ustawy - Prawo
04/01/2010
zamówień publicznych oraz niektórych innych ustaw
Ministério das Obras Públicas, Transportes e
Comunicações
Introduz o mecanismo do anúncio voluntário de
14/12/2010
transparência, modifica o regime da invalidade de actos
procedimentais de formação de contratos administrativos,
clarifica a aplicação de regras do Código dos Contratos
Portugal
101
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1714470_0102.png
Públicos, procede à quinta alteração ao Código dos
Contratos Públicos, aprovado pelo Decreto-Lei n.º
18/2008, de 29 de Janeiro, e transpõe a Directiva n.º
2007/66/CE, do Parlamento Europeu e do Conselho, de
11 de Dezembro, que altera as Directivas n.os
89/665/CEE, do Conselho, de 21 de Dezembro, e
92/13/CEE, do Conselho, de 25 de Fevereiro, no que diz
respeito à melhoria da eficácia do recurso em matéria de
adjudicação de contratos públicos
•Decreto-Lei n.º 18/2008. D.R. n.º 20, Série I de 2008-01-
29
Ministério das Obras Públicas, Transportes e
Comunicações
08/09/2010
Aprova o Código dos Contratos Públicos, que estabelece
a disciplina aplicável à contratação pública e o regime
substantivo dos contratos públicos que revistam a
natureza de contrato administrativo
•Lei n.º 15/2002. D.R. n.º 45, Série I-A de 2002-02-22
Assembleia da República
Aprova o Código de Processo nos Tribunais
Administrativos (revoga o Decreto-Lei n.º 267/85 de 16 de
Julho) e procede à quarta alteração do Decreto-Lei n.º
08/09/2010
555/99 de 16 de Dezembro, alterado pelas Leis n.os
13/2000, de 20 de Julho, e 30-A/2000, de 20 de Dezembro,
e pelo Decreto-Lei n.º 177/2001 de 4 de Julho
Romania
Ordonanţă de urgenţă privind unele măsuri în domeniul
14/01/2010
legislaţiei referitoare la achiziţiile publice
Ordonanţa de urgenţă pentru modificarea
şi
completarea
Ordonanţei de urgenţă a Guvernului nr. 34/2006 privind
atribuirea contractelor de achiziţie publică, a contractelor
04/09/2009
de concesiune de lucrări publice
şi
a contractelor de
concesiune de servicii
Slovenia
Zakon o pravnem varstvu v postopkih javnega naročanja
27/07/2011
(ZPVPJN)
102
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Zakon o spremembah in dopolnitvah Zakona o javnem
naročanju na vodnem, energetskem, transportnem
27/07/2011
področju in področju poštnih storitev (ZJNVETPS-C)
Zakon o spremembah in dopolnitvah Zakona o javnem
27/07/2011
naročanju (ZJN-2B)
Zakon o spremembah in dopolnitvah Zakona o javnem
naročanju na vodnem, energetskem, transportnem
27/07/2011
področju in področju poštnih storitev (ZJNVETPS-B)
Zakon o spremembah in dopolnitvah Zakona o javnem
27/07/2011
naročanju (ZJN-2C)
Slovakia
Zákon
č.
95/2013 Z. z., ktor�½m sa mení a dopĺňa zákon
č.
25/2006 Z. z. o verejnom obstarávaní a o zmene a
doplnení niektor�½ch zákonov v znení neskorších predpisov
08/07/2013
a o zmene zákona
č.
455/1991 Zb. o živnostenskom
podnikaní (živnostensk�½ zákon) v znení neskorších
predpisov
Zákon
č.
28/2013 Z. z., ktor�½m sa mení a dopĺňa zákon
č.
25/2006 Z. z. o verejnom obstarávaní a o zmene a
08/07/2013
doplnení niektor�½ch zákonov v znení neskorších predpisov
Zákon
č.
503/2009 Z. z., ktor�½m sa mení a dopĺňa zákon
č.
25/2006 Z. z. o verejnom obstarávaní a o zmene a
04/01/2010
doplnení niektor�½ch zákonov v znení neskorších predpisov
a o doplnení niektor�½ch zákonov
Finland
Laki vesi- ja energiahuollon, liikenteen ja postipalvelujen
alalla toimivien yksiköiden hankinnoista annetun lain
muuttamisesta / Lag om ändring av lagen om upphandling
07/05/2010
inom sektorerna vatten, energi, transporter och
posttjänster
103
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Laki julkisista hankinnoista annetun lain muuttamisesta /
07/05/2010
Lag om ändring av lagen om offentlig upphandling
LANDSKAPSLAG om ändring av 4 § landskapslagen om
16/02/2010
allmänna handlingars offentlighet
LANDSKAPSLAG om ändring av landskapslagen
angående tillämpning i landskapet Åland av lagen om
16/02/2010
offentlig upphandling
Sweden
Lag om ändring i lagen (2007:1092) om upphandling inom
15/06/2010
områdena vatten, energi, transporter och posttjänster
Lag om ändring i lagen (2007:1091) om offentlig
15/06/2010
upphandling.
1. lag om ändring i lagen (2007:1091) om offentlig
upphandling
2. lag om ändring i lagen (2007:1092) om upphandling
02/06/2010
inom områdena vatten, energi, transporter och
posttjänster.
United
Kingdom
Public Contracts and Utilities Contracts (Scotland)
17/12/2009
Amendment Regulations 2009 SSI 2009 No 428
Utilities Contracts (Amendment) Regulations 2009 SI 2009
17/12/2009
No 3100
Public Contracts (Amendment) Regulations 2009 SI 2009
17/12/2009
No 2992
104
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A
NNEX
6 — T
YPES OF FIRST INSTANCE REVIEW BODIES IN
M
EMBER
S
TATES
AS OF
M
ARCH
2016
MS
AT
BE
BG
CY
CZ
DE
Review body
Judicial body
Judicial body
Administrative body:
Комисия за защита �½а ко�½куре�½цията
(Commission for Protection of
Competition)
Administrative body:
Α�½αθεωρητική Αρχή Προσφορώ�½
(Tenders Review Authority)
Administrative body:
Úřad pro ochranu hospodářské soutěže
(Office for the Protection of
Competition)
Administrative body:
Kartellamt
(Competition Protection Body); similar bodies exist at regional
and local level
Administrative body:
Klagenævnet for Udbud
(Review Body for Public Tenders)
Administrative body:
Riigihangete Vaidlustuskomisjon
(Public Procurement Appeals Committee)
Judicial body
Administrative body:
Tribunal Administrativo Central de Recursos Contractuales
(Central
Administrative Tribunal for Public Procurement); similar bodies exist in all regions and in some
provinces and municipalities
Judicial body
Judicial body
Administrative body:
Državna komisija za kontrolu postupaka javne nabave
(State Commission
for Supervision of Public Procurement Procedures)
Administrative body:
Közbeszerzési Döntőbizottság
(Public Procurement Arbitration Board)
Judicial body
Judicial body
Judicial body
Judicial body
Judicial body
Administrative body:
Bord ta’Reviżjoni dwar il-Kuntratti Pubbliċi
/ Public Contracts Review
Board
Judicial body
Administrative body:
Krajowa Izba Odwoławcza
(National Appeal Chamber)
Judicial body
Administrative body:
Consiliului Naţional de Soluţionare a Contestaţiilor
(National Council for
Solving Complaints)
Judicial body
Administrative body:
Državna revizijska komisija
(National Review Commission)
Administrative body:
Úrad pre verejné obstarávanie
(Office of Public Procurement)
Judicial body
DK
EE
EL
ES
FI
FR
HR
HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
UK
105
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A
NNEX
7 — T
HE USE OF
VEAT
NOTICES BY MEMBER STATE IN THE PERIOD
2009-
2012
2009
AT
BE
BG
CY
CZ
DE
DK
EE
ES
FI
FR
31
GR
HU
HR
IE
IT
LT
LV
NL
2
PL
PT
RO
SE
SI
SK
UK
1
IS
LU
NO
Total
34
Source: OJEU/TED
2010
39
3
14
1
15
18
111
8
38
107
6 755
1
1
5
156
18
13
21
677
3
44
112
131
222
2011
85
3
8
8
12
19
232
6
100
222
7 737
7
2012
75
7
21
20
23
17
552
4
85
225
6 603
13
1
12
247
68
31
61
919
5
73
198
150
483
1
37
9 931
2013
129
11
53
18
45
124
534
126
289
6 201
6
1
57
10
265
81
26
75
923
1
75
208
135
605
1
144
10 143
4
261
31
32
38
1012
8
1
99
187
143
431
1
1
10 688
2014
124
4
57
23
24
84
550
4
89
260
5 118
1
1
125
4
335
83
25
68
940
3
87
240
123
667
6
1
183
9 229
2015
125
3
50
29
25
67
525
140
261
4 781
3
118
15
455
89
19
62
982
3
78
292
86
853
4
171
9 236
8 513
Total
577
31
203
99
144
329
2 504
22
578
1364
37 226
31
4
300
50
1 719
370
146
327
5 453
23
1
456
1 237
768
3 262
11
4
535
57 774
106
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A
NNEX
8 — I
MPLEMENTATION OF ALTERNATIVE PENALTIES BY
M
EMBER
S
TATE
MS
AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HR
HU
IE
IT
Alternative penalties applied
Fines (up to 20 % of the contract value), to be used in a fund for the stimulation of scientific
research or in other funds pursuing issues of general interest
Fines (up to 15 % of the contract value) or shortening of the contract duration
No provision for alternative penalties
Fines and/or shortening of the contract duration
Fines
No provision for alternative penalties
Fines (ranging between 3 % and 5 % of the contract value); criminal sanctions in the case of
private undertakings operating in the utilities sector
Shortening of the contract duration
Fines and in some cases shortening of the contract duration
Fines (ranging between 5 % and 20 % of the contract value) or shortening of the contract
duration
Fines (up to 10 % of the contract value) or shortening of the contract duration
Fines (up to 20 % of the value of the contract) or shortening of the contract duration
Fines (ranging between 10 % and 20 % of the contract value or, in case of partial annulment,
of the performed part of the contract) or shortening of the contract duration.
Fines.
Fines (up to 10 % of the contract value), shortening of the contract duration or termination
of the contract
Fines (ranging between 0.5 % and 5 % of the contract value) and/or shortening of the
contract duration (ranging between 10 % to 50 % of the remaining duration at the time of
publication of the review decision)
Fines (up to 10 % of the contract value).
Fines (up to 15 % of the contract value) or shortening of the contract duration
The possibility of imposing alternative penalties is laid down in the legislation but they are
not defined
Fines (in the amount of 15 % of the contract value but not exceeding € 50 000) or shortening
of the contract duration
Fines (up to 15 % of the contract value) or shortening of the contract duration
Fines (5 % or 10 % of the contract value) or shortening of the contract duration
Fines (up to the total contract value) or shortening of the contract duration
No provision for alternative penalties
Fines (between Skr 10 000 and Skr 10 000 000 — i.e. between € 1 050 and € 1 050 000 —
up to 10 % of the contract value)
The possibility of not declaring a contract ineffective is laid down in the legislation but the
alternative penalties are not defined
Fines
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
UK
Fines and/or shortening of the contract duration
Source: Directorate General for Internal Market, Industry, Entrepreneurship and SMEs, based on
publicly available information
107
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A
NNEX
9 — T
IME LIMITS BY
M
EMBER
S
TATE
1. Time limits in pre-contractual remedies
MS
AT
BE
BG
CY
Pre-contractual time limits
At Federal and Länder levels, 15 days or 10 days with effect from the day following the date
in which the decision is transmitted or published.
15 days with effect from the day the decision is published or notified; electronic means or
fax are always used.
10 days with effect from the day the decision is notified.
10 days if fax or electronic means are used or if there is publication; 15 of other means of
communication are used,; in both cases the time starts on the date following the date on
which the decision is notified or published.
15 days after the delivery of the decision (into the hands of the tenderer/candidate).
Review must first be sought with the contracting authority immediately after being aware of
the error (under new legislation, within 10 days of being aware of the error); if the claim is
rejected, review with an administrative review body can be sought within 15 days.
30 days from the moment of sending of the information on the award decision.
10 days from the moment of receipt of the information on the award decision.
Review must first be sought with the contracting authority within 10 days of the
transmission of the award decision; the contracting authority then has 15 days to reach a
decision; if no decision concerning the review is reached within those 15 days, the claim is
deemed to be rejected; as from the moment of the explicit or implicit rejection, the tenderer
or candidate has 10 days to seek review with administrative courts.
15 working days (including Saturdays), regardless of the means of communication used,
with effect from the day following the date in which the decision is published or notified.
14 days with effect from the date of receipt of the notification.
The time limit is the conclusion of the contract, which is subject to a standstill period of 16
days as from the day the information on the award decision is sent out (11 days if the
information is sent out electronically); during that time and until there is a decision of the
relevant review body, the conclusion of the contract is suspended
10 days with effect from the day following the date in which the decision is received.
15 days from the date when the applicant learned of the infringement.
30 calendar days after the applicant was notified of the decision or knew or ought to have
known of the infringement alleged in the application.
30 days from the date of reception of the communication on the decision of the contracting
authority.
Review must first be sought with the contracting authority within 15 days of the
transmission of the award decision or within 10 days in cases where it is not required to send
information; the tenderer or candidate can seek review with a court within 15 days of the
date in which the contracting authority should provide written information concerning its
decision.
10 of 15 calendar days, depending on communication method used, with effect from the day
following the date on which the contracting authorities' decision is sent to the tenderer or
candidate.
10 days if fax o electronic means are used or the notification is handed to the tenderer and
15 days if postal mail is used; in both cases the time limit starts on the date of the
notification but 1 working day is added.
CZ
DE
DK
EE
EL
ES
FI
FR
HR
HU
IE
IT
LT
LU
LV
108
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MT
NL
PL
PT
RO
SE
SI
SK
UK
10 days with effect from the day following the date of notification by fax or electronic
means.
No time limit.
10 and 15 days, depending on communication method, with effect from the day of
notification.
10 working days with effect from the day following the date in which the decision is
notified; electronic means are always used.
10 days with effect from the day following the date of notification or publication.
10 and 15 days depending on the means of communication used.
8 working days with effect from the date of publication of the decision or receipt of the
notification.
The contract may be concluded at earliest on the 16
th
day after sending the contract award
notice.
30 days with effect from the date when the economic operator first knew or ought to have
known that grounds for starting the proceedings had arisen; the court may extend this time
limit by maximum 3 months.
Source: Directorate General for Internal Market, Industry, Entrepreneurship and SMEs, based on
publicly available information
2. Time limits for the ineffectiveness remedy
MS
AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HR
Ineffectiveness time limits
30 days with effect from the date on which the decision is published or notified and six
months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
2 months with effect on the date the decision is published or notified; in other cases, 2
months after finding out about the conclusion of the contract and in any event 1 year.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published and
six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is notified and six
months in other cases.
30 days with effect from the day following the date on which the decision is published and
six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 working days (including Saturdays) with effect from the day following the date on which
the decision is published or notified and six months in other cases.
30 days with effect from the day following the date on which the decision is notified and six
months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months for other cases, but only if the legal ground is the non-publication of
a contract notice; for other legal grounds, 10 days.
109
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HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
15 days from the date when the applicant learned of the infringement; 1 year from the date
of conclusion of the contract if there was no award procedure.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published and
six months in other cases.
6 months in all cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
30 days with effect from the day following the date on which the decision is notified and six
months in other cases.
8 working days with effect from the date of publication of the contract award notice in the
Public Procurement Portal; six months with effect with effect from the date of start of
performance of the contract if no contract award notice was published.
30 days with effect from the day following the date on which the decision is published and
six months in other cases.
SK
UK
30 days with effect from the day following the date on which the decision is published or
notified and six months in other cases.
Source: Directorate General for Internal Market, Industry, Entrepreneurship and SMEs, based on
publicly available information
110
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NNEX
10 — L
ENGTH OF REVIEW
1. Estimated length of the review (interim measures 2009-2012)
Interim
100
20
Length - days (median)
40
60
80
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
NO DATA
0
AT BE BG CY CZ DE DK EE EL ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK
Judicial
Non-judicial
Median
Note:
Review of case-law
Statistics based on the following number of observations: AT: 88; BG: 31; CY: 111; CZ: 42; DK: 90;
EL: 104; HU: 39; IE: 1; LU: 24; LV: 3; SI: 4; UK: 11.
Source: Study, Figure 6.6 (page 87)
111
NO DATA
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2. Estimated length of the review (second instance 2009-2012)
Second pre-contractual
1000
Length - days (median)
400
600
800
NONE IDENTIFIED
200
NO DATA
NO DATA
N/A
0
AT BE BG CY CZ DE DK EE EL ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK
Length
Median
Note:
Review of case-law
Statistics based on the following number of observations: AT: 44; BG: 124; CY: 5; CZ: 27; DE: 139;
DK: 10; EE: 73; ES: 2; FI: 49; FR: 21; HU: 113; IT: 93; LT: 105; LU: 14; LV: 58; NL: 24; PL: 1; PT:
14; RO: 34; SE: 32; SK: 17; UK: 4
BE — N/A (no appeal from Council of State)
EL — None identified from sample reviewed
IE — No data (there is 1 case in 2011 and 1 in 2012 but dates of decision are missing)
MT — No data
SI — N/A (no appeal from National Review Commission).
Source: Study, Figure 6.8 (page 89)
112
N/A
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3. Estimated length of the review (third instance 2009-2012)
Third pre-contractual
Length - days (median)
500
1000
NONE IDENTIFIED
NONE IDENTIFIED
NONE IDENTIFIED
0
AT BE BG CY CZ DE DK EE EL ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK
Length
Median
Review of case-law
Note:
statistics based on the following number of observations: CZ: 1; DE: 7; DK: 1; EE: 30; ES: 10; HU:
69; LT: 47; LV: 17; NL: 3; PT: 14; RO: 1; SE: 2; SK: 14
AT — N/A (second is final instance)
BE — N/A
BG — N/A
CY — None identified from sample reviewed
EL — None identified from sample reviewed
FI — N/A
FR — N/A
IE — None identified from sample reviewed
IT — N/A
LU — N/A
MT — N/A
PL — No data
SI — N/A
UK — None identified from sample reviewed.
Source: Study, Figure 6.9 (page 90)
113
NONE IDENTIFIED
NO DATA
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
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A
NNEX
11 — P
ROVISIONS FOR
S
TATE
78
MS
AT
Litigation Costs
Fee: Scaled based criteria (depending on object, nature
of the procedure, procedure relates to above or below
threshold contract).
Procedural fees: €200
Ordinary courts: €400
Inscription on the roll: €100
Summon [€140; €500]
Below threshold: €435 (Stamp duty)
Above threshold: €869 (Stamp duty)
Fees [€4 000; €20 000] (depending on the value of the
contract)
Deposit 1 % of contract [CZK 50 000; 2 000 000]
Unknown contract value: CZK 100,000
Cancelled award: CZK 30 000
Law suit against decision: CZK 3 000
Appeal First instance: CZK 5 000
Fee: [€2 500; €50 000]
Fee in exceptional case: [€250;€100 000]
Fee: 20 000 DKK (Public Sector)
Fee:10 000 DKK (Other)
Fee 1% of contract (max €50 000)
Supreme Court: €2466
Courts of Appeals: €1020
THE COSTS OF REVIEW PROCEDURES BY
MS
Litigation Costs
Fee €210
Originating notice €190, affidavit €20
Contract value < 200 000€: €2 000
Contract value [€200 000; 1m]: €4 000
Contract value>€1 000 000: €6 000
For appeals, fees are increased by 50 %
Stamp fee: €290
Fee: €0
Excluding lawyers and bailiffs fee
Fee: €0
Appeal to decision: €30
Excluding lawyers and bailiffs fee
M
EMBER
IE
BE
IT
BG
CY
LT
LU
CZ
LV
DE
DK
MT
NL
Deposit 0.75 % of contract value [€1 200; €58 000]
Fee: €3829 (legal persons)
Contract value >€100 000: €1519 (natural persons)
For supplies and services:
- Public authority below €134.000: €1.800; above €134.000: €3.600
- Other authority below €207.000: €1.800; above €207.000: €3.600
For works:
- Public authority below €5.186.000: €2.500; above €5.186.000:
€5.000
- Other authority below €5.186.000: €2.500; above €5.186.000:
€5.000
The justice tax: €102
Pre-contractual justice tax: €204
€13 860-€92 400: 1 % of this value;
€92 401-€924 000: €924+0.1 % excess of 92 401;
€924 000-€9 240 000: €1756+0.01 % excess of 9 240 000
€9 240,000-€92 400,000: €2587+0.001 % excess of 9 240 000
€92 400,000-€924 000 000: €3418+0.0001 % excess of 92 400
000
€924 000 000 or more: €4 250+0.00001 % excess of 924 000 000
Note: these are not costs paid to the review body, but amount
withheld from participation guarantee
In addition a deposit is required of 1% of contract value (to a
maximum of €100 000), retained if complainant’s case unsuccessful.
Fee: €0
2% of best bid price [€500; €25 000]
Goods or services: Low value: €1 500; Open procedure: €3 500
Works: Low value: €2 500; Open: €7 000
Other €1 000 (defence and security B service; framework
agreement; dynamic purchasing system or design contests).
Before opening of tender:
Goods and services:
-Above:1 % max €4000,
-Below:3 % max €2000
Works:
-Above: 0.1 % max €10 000,
-Below:5 % max €5 000
After opening of tender: 1% value (max €300 000)
Unknown contract value: €3 000
1% contract value [€600; €30 000] low price exclusion
Fees: [€44; €2423] (based on contract value)
Contract value £200 001- £250 000: €1912
Contract value >£300 000: €2423
EL
PL
EE
Fee below threshold: €639.11
Fee above threshold: €1278.23
Fee: €0
PT
ES
RO
FI
Fee general court: €244
Administrative tribunal: €0
High Courts: ~ €100
- including summons ~[€40; €100]
SE
FR
SI
HR
0-€197 202.69: €1 314.89
€197 202.69-€986 180.64: €3 287.27
€986 180.64-€3 287 218.27: €5 917.08
€3 287 218.27-€7 889 338.44: €9 204.23
above €7 889 338.44: €13 148.90
SK
HU
Fee: 1 % of contract value/lot
Revision of decision: HUF 30 000
Court proceedings: 6 % of contract value
[HUF 15.000; HUF1.5 m]
Above threshold: (max: HUF 25 000 000)
Below threshold: [HUF 200 000;HUF 6 000 000]
In cases pursuant to paragraph 1, fee:
a) 1-3 elements fee is amount in paragraph 1
b) 4-6 elements: fee is 125 % of (a)
c) 7-10 elements: fee is 150 % of (a)
d) 11-15 elements: fee is 175 % of (a)
e) 16 or more elements: twice the of (a)
UK
78
Study, Table 5.1 (p. 67)
114
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NNEX
12 — T
HE NUMBER OF SECOND INSTANCE DECISIONS IN
2009-2012
MS
CZ
CY
DE
DK
EE
HU
IE
LT
LU
RO
SE
SI
Total
Source: Study, Table 6.3 (page 84)
2009
100
14
199
10
48
193
111
137
4
784
409
365
2 374
2010
167
11
226
3
37
196
17
284
4
401
544
401
2 291
2011
155
13
241
4
57
164
79
305
4
619
717
537
2 895
2012
229
10
184
5
55
130
0
280
2
427
716
505
2 543
Total
651
48
850
22
197
683
207
1 006
14
2 231
2 386
1 808
10 103
115
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A
NNEX
13 — T
HE NUMBER OF THIRD INSTANCE DECISIONS IN
2009-2012
MS
EE
LT
SE
Total
2009
12
8
129
149
2010
13
10
108
131
2011
12
23
234
269
2012
16
20
216
252
Total
53
61
686
800
Review of case-law
Source: Study, Table 6.4 (page 84)
116
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count of n
count of n
10
0
0
0
0
20
0
40
60
80
0
count of n
0
50
0
1,
00
0
1,
50
0
2,
00
0
2,
50
0
0
50
15
0
N
/A
N
Graphs by appellant
Graphs by appellant
Graphs by appellant
da
m
N
/A
in
e
ffe
c
ag
es
se
ta
tiv
si
de
en
es
s
First (pre)
Applicant
Applicant
se
ta
co
Source: Study, Figure 6.10 (page 92)
da
m
ag
se
es
ta
si
de
de
ci
si
on
sp
ec
s.
/A
da
m
ag
in
es
ef
fe
ct
iv
en
se
es
ta
s
si
de
co
se
nt
ra
ta
ct
si
de
de
ci
si
on
sp
ec
s.
si
de
nt
ra
c
t
de
ci
si
on
sp
ec
s
.
Initial complain
Third instance
Second instance
A
NNEX
14 — F
REQUENCY OF REMEDIES SOUGHT IN
2009-2012
117
N
da
Applicant
m
in
e
ffe
c
ag
es
tiv
se
ta
First (post)
si
de
en
es
s
se
ta
co
si
de
nt
ra
ct
de
da
m
ag
es
in
ef
fe
ct
iv
en
se
es
ta
s
si
de
co
nt
ra
ct
Contracting Authority
Contracting Authority
ci
si
on
sp
sp
ec
s.
/A
da
m
ag
in
es
ef
fe
ct
iv
en
se
ta
es
s
si
de
co
se
nt
ra
ta
ct
si
de
de
ci
si
on
ec
s
Interim
.
in
te
rim
 kom (2017) 0028 - Ingen titel
A
NNEX
15 — G
LOSSARY
Contracting authorities:
Contracting authorities and entities as defined in Article 1,
paragraph 9, of Directive 2004/18/EC and Article 2 of
Directive 2004/17/EC;
The Court of Justice of the European Union;
Dynamic Purchasing System;
Public consultation launched by the services of the
Commission, open from 24 April to 20 July 2014;
EU Member States and Iceland (IC), Liechtenstein (LI),
and Norway (NO);
Belgium (BE), Bulgaria (BG), the Czech Republic (CZ),
Denmark (DK), Germany (DE), Estonia (EE), Ireland (IE),
Greece (EL), Spain (ES), France (FR), Croatia (HR), Italy
(IT), Cyprus (CY), Latvia (LV), Lithuania (LT),
Luxembourg (LU), Hungary (HU), Malta (MT),
Netherlands (NL), Austria (AT), Poland (PL), Portugal
(PT), Romania (RO), Slovenia (SI), Slovakia (SK), Finland
(FI), Sweden (SE), the United Kingdom (UK);
TED (Tenders Electronic Daily) — the online version of
the ‘Supplement to the Official Journal’ of the EU,
dedicated
to
European
public
procurement
(http://ted.europa.eu/);
Directives laying down substantive rules on public
procurement i.e. Directives 2004/17/EC and 2004/18/EC
(replaced by Directive 2014/23/EU, Directive 2014/24/EU
and Directive 2014/25/EU);
Public contracts and concession contracts;
Regulatory fitness and performance programme;
Directives 89/665/EEC and 92/13/EC, as amended by
Directive 2007/666/EC;
‘Economic efficiency and legal effectiveness of review and
remedies procedures for public contracts’ written by
Europe Economics and Milieu, April 2015;
The Treaty on the Functioning of the European Union.
The Court:
DPS:
EC public consultation:
EEA countries:
Member States:
OJEU/TED:
Procurement Directives:
Contracts:
REFIT:
Remedies Directives:
Study:
TFEU:
118