Commission report on the Remedies Directives published


person photo

Catherine Maddox


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).           

Related Insights

Procurement Byte on Supply Chain (3 of 3) – The Reporting on Payment...

by Fran Mussellwhite

Procurement Byte

CMA publishes Joint Venture Business Advice

by Trevor Watt

Joint Misadventure: specialist laundries fined £1.7m for market...

by Trevor Watt

Apple, Tax and State Aid

by Edward Reynolds

Perhaps the most important legal question will be around selectivity as paying less tax will almost always give an advantage.

ICO issues record fine of £400,000 for data breach against Talk Talk

Last week, the Information Commissioner's Office issued a record fine of £400,000 for a breach of the Data Protection Act 1998 by...

We are truly privileged to advise you!

by Louise Robling

Mr Justice Akenhead has held in the case of Walter Lilly and Company Limited v Mackay and DMW [2012] EWHC 649 (TCC) that advice...

Snow and delays in construction contracts: What you need to know!

by Andrew Tobin

Heavy snow is forecast around the country over the weekend with up to 30 cm expected on higher ground. While this may bring...

Upper Tribunal decides that water companies are "public authorities"

by Virginia Cooper

The Fish Legal case has finally been concluded, with the Upper Tribunal ruling that the four water companies involved are indeed...

Keep up to date With Bevan Brittan

What interests you?

About you?

You can view our privacy policy here