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PURPOSE: to improve the
effectiveness of review procedures concerning the award of public contracts. LEGISLATIVE ACT : Directive
2007/66/EC of the European Parliament and of the Council 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. CONTENT: the Council adopted at
first reading, further to agreement reached with the European Parliament, a
Directive amending Council Directives 89/665/EEC and 92/13/EEC (the “Remedies
Directives”) with regard to improving the effectiveness of review procedures
concerning the award of public contracts. Directives 89/665/EEC and 92/13/EEC
are intended to ensure the effective application of Directives 2004/18/EC and
2004/17/EC. As a result of weaknesses revealed by the case law of the Court
of Justice, the mechanisms established by Directives 89/665/EEC and 92/13/EEC
did not always make it possible to ensure compliance with Community law,
especially at a time when infringements could still be corrected.
Consequently, the provisions of this Directive are intended to ensure that
the Community as a whole fully benefit from the positive effects of the
modernisation and simplification of the rules on public procurement achieved
by Directives 2004/18/EC and 2004/17/EC. The weaknesses noted included in
particular the absence of a period allowing an effective review between the
decision to award a contract and the conclusion of the contract in question.
This sometimes resulted in contracting authorities which wished to make
irreversible the consequences of the disputed award decision proceeding very
quickly to the signature of the contract. In order to remedy this weakness,
which is a serious obstacle to effective judicial protection for tenderers
who had not been definitively excluded, the Directive provides for a minimum
standstill period. The main points are as follows: -Minimum standstill periods:the Directive provides a minimum standstill period during which the
conclusion of the contract in question is suspended, irrespective of whether
conclusion occurs at the time of signature of the contract or not. The
standstill period will give the tenderers concerned sufficient time to
examine the contract award decision and to assess whether it is appropriate
to initiate a review procedure. 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 after the date on which the contract
award decision is sent to the tenderers 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 at least 15 calendar days with effect from
the day after the date on which the contract award decision is sent to the
tenderers and candidates concerned. In the latter case, Member States may
also provide that a contract shall not be concluded before the expiry of at
least 10 calendar days with effect from the day following the date of the
receipt of the contract award decision. If this standstill period has not
been respected, the Directive requires national courts under certain
conditions to set aside a signed contract, by rendering the contract'ineffective'. -Illegal direct awards of
public contracts: this has been called the most serious infringement of
EU procurement law. National courts will also be able to render these public
contracts ineffective if they have been illegally awarded without
transparency and prior to competitive tendering. In these cases the contract
will need to be tendered again, this time according to the appropriate rules. National courts may decide that
these contracts remain in force only if required by overriding reasons
relating to a general interest. In those cases, alternative penalties must be
applied instead. These alternative penalties must be effective, proportionate
and dissuasive, and may entail the shortening of the duration of the contract
or the imposition of fines on the contracting authority. Derogations: the
standstill period is not intended to apply if Directive 2004/17/EC or
Directive 2004/18/EC do not require prior publication of a contract notice in
the OJ, in particular in all cases of extreme urgency. In those cases
it is sufficient to provide for effective review procedures after the
conclusion of the contract. Similarly, a standstill period is not necessary
if the only tenderer concerned is the one who is awarded the contract and
there are no other candidates. In cases of contracts based on a framework
agreement or a dynamic purchasing system, Member States may, instead of
introducing a mandatory standstill period, provide for ineffectiveness as an
effective sanction in accordance with certain provisions of the legislation.
In certain cases, contracts based on a framework agreement do not require
prior publication of a contract notice in the OJ, and in those cases a
standstill period is not mandatory. Ineffectiveness: in
order to prevent the serious infringements of the standstill obligation and
the automatic suspension, which are prerequisites for effective review,
effective sanctions must apply. Contracts that are concluded in breach of the
standstill period or the automatic suspension will therefore be considered
ineffective in principle if they are combined with infringements of Directive
2004/18/EC or Directive 2004/17/EC to the extent that these infringements
have affected the chances of the tenderer applying for a review to obtain the
contract. In the case of other infringements of formal requirements Member
States might consider the principle of ineffectiveness to be inappropriate.
In those cases Member States will have the flexibility to provide for alternative
penalties. The latter will be the imposition of fines which should be paid to
a body independent of the contracting authority or a shortening of the
duration of the contract. It is for Member States to determine the details of
alternative penalties and the rules of their application. The Directive does
not exclude the application of stricter sanctions according to national law. Sanctions: in order to
ensure the proportionality of the sanctions applied, Member States may give
the body responsible for review procedures the possibility of not
jeopardising the contract or of recognising some or all of its temporal
effects, when the exceptional circumstances of the case concerned require
certain overriding reasons relating to a general interest to be respected. In
those cases alternative penalties should be applied instead. In exceptional
cases the use of the negotiated procedure without publication of a contract
notice within the meaning of Directive 2004/18/EC or Directive 2004/17/EC
would be permitted immediately after the cancellation of the contract. If in
those cases, for technical or other compelling reasons, the remaining
contractual obligations can, at that stage, only be performed by the economic
operator which has been awarded the contract, the application of overriding
reasons might be justified. Economic interests in the effectiveness of a
contract may only be considered as overriding reasons if, in exceptional
circumstances, ineffectiveness would lead to disproportionate consequences.
However, economic interests directly linked to the contract concerned should
not constitute overriding reasons. Review: no later than 20
December 2012, the Commission shall review the implementation of the
Directive and report in particular on the effectiveness of the alternative
penalties and time limits. TRANSPOSITION: 20 December
2009. ENTRY INTO FORCE: 09/01/2008.
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