Commission report on the Remedies Directives published

The European Commission has published its conclusions on its review of the operation of the remedies regime as contained in the Remedies Directive.[1]

The remedies provided for (which include pre and post contractual remedies) are a unique example of giving full effect to EU rights at a national level. Overall, the report concludes that the remedies regime has met its objectives of increasing the observation of the principles of transparency and non-discrimination in public procurement.

The report drew the following conclusions:

• The remedies provisions are well used; between 2009 – 2012, over 50 000 first instance decisions were taken.

• The most frequent remedy sought was to set aside a decision, followed by interim measures and the removal of discriminatory specifications.

• The report noted the increased efficacy of the review procedure brought about by the remedies provisions, observing that before the standstill period was mandated, there was no measure in place which was rapid enough to suspend the conclusion of contract award.

• Replies to the public consultation carried out identified that the standstill period was viewed as the most relevant provision, followed by suspension of the contract award procedure when proceedings are initiated and then the debriefing provisions.

• The public consultation also identified that the remedies regime was viewed by just over half of respondents to the consultation as evenly balancing the interests of economic operators in ensuring the effectiveness of public procurement law and the interest of contracting authorities in limiting frivolous litigation.

• It was concluded that the costs of review procedures, while varying widely across member states, do not have a dissuasive effect on the choice to exercise access to the remedies regime.

Next steps:

The report observed that while the remedies regime should be maintained in its current state, some areas of uncertainty remained in relation to the remedies regime, resulting from the interplay between the remedies directives and the most recent public procurement legislation, in particular:

• The reference to a 'contract notice' in the remedies provisions does not align with the fact that a PIN notice can be used to call for competition instead of a contract notice in certain circumstances.

• It is not clear how the remedies provisions apply to modifications of a contract, to concessions and to the social and other specific services (light) regime.

The Commission states in the report that it will disseminate some guidance in relation to the remedies provisions to increase understanding in relation to some of these issues, which will presumably include coverage of the two areas of uncertainty listed above. The guidance is also intended to address the development of criteria in relation to when the automatic suspension of the conclusion of a contract following the lodging of a legal action should be lifted.

It was also noted that the Commission will monitor breaches of the remedies regime in member states and take appropriate measures in response.

The full report from the Commission can be found here  (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).

If you would like to discuss the article above, or how its contents may affect your organisation please contact Catherine Maddox or Head of Procurement, Emily Heard.

[1]              Remedies Directives 89/665/EEC and 92/13/EEC, as modified by Directive 2007/66/EC (consolidated in the Public Contracts Regulations 2015 (as amended), Directive 2014/24/EU and the Concession Contracts Regulations 2016, Directive 2014/23/EU).