Directive 89/665/EEC consolidating proposed amendments

This is the text of the Remedies Directive for Classical Sector as if the amendments proposed by the Commission on 4 May 2006 were adopted without revision.

Legend:
 * Additions are identified in italics
 * Deletions with a strikethrough.
 * Inconsequential changes to grammar have been incorporated without identification.


 * 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


 * As amended by Proposal for a Directive amending Council Directive 89/665/EEC, dated 4.5.2006

Article 1
1. The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC and 77/62/EEC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles 2 to 2f, and, in particular, Article 2 (7) on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.

2. Member States shall ensure that there is no discrimination between undertakings claiming injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.

3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.

''4. The Member States may require that the person seeking the review must have previously notified the contracting authority by fax or electronic means of the alleged infringement and of his intention to seek review. In this case, the Member States shall ensure that no minimum deadline is imposed between the moment when the information is sent to the contracting authority and the moment when an application for review is lodged with the body responsible for review procedures.''

''Similarly, the Member States may require that the person concerned first seek review with the contracting authority. In this case the Member States shall ensure that the submission of such an application for review by fax or electronic means results in the immediate suspension of the possibility of proceeding to the conclusion of the contract.''

The automatic suspension referred to in the second paragraph shall end at the expiry of a deadline which may not be less than five working days from the day following the date on which the contracting authority has sent its reply by fax or electronic means.

''5. In the event of an application for review relating to circumstances in which the submissions by fax or electronic means referred to in paragraph 4 did or did not occur, the body responsible for review procedures, independent of the contracting authority, shall in particular consider all reasonable and relevant evidence which is communicated to it by the authors of such submissions and which conform that the submissions were sent and were received by the addressees. ''

Article 2
1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to:

(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing 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 decision taken by the contracting authority;

(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;

(c) award damages to persons harmed by an infringement.

2. The powers specified in paragraph 1 may be conferred on separate bodies responsible for different aspects of the review procedure.

3. Except where provided for in Article 1(4) and Articles 2 to 2f, review procedures need not in themselves have an automatic suspensive effect on the contract award procedures to which they relate.

''3a. When a body independent of the contracting authority has to review a contract award decision or a decision subsequent thereto, it shall inform the contracting authority without delay by fax or electronic means of the fact that it cannot proceed to the conclusion of the contract for a period determined by the Member State where the body is established and which cannot be less than five working days with effect from the day following dispatch of the information concerned. After considering all the supporting documents of the review, and when it reaches the conclusion that the period of suspension referred to above should not be extended, the body may terminate at any time the requirement not to conclude the contract.''

4. The Member States may make provision that, when the body responsible for review procedures, considers whether provisional measures should be taken, it may take into account the probable consequences of the measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures where their negative consequences could exceed their benefits.

''In making use of the option provided by the first paragraph, the Member States may not obstruct the application of Article 2f, when the contract concerned has been concluded in breach of Article 1(4), Article 2(3a), Articles 2a to 2d or Article 2e or in breach of an additional provisional measure taken by the body responsible for review procedures and intended to extend the suspension of the conclusion.  The'' decision not to grant interim measures shall not prejudice any other claim of the person seeking these measures.

5. The Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.

6. Except where provided for in Article 1(4) and Articles 2a to 2f, the effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law.

In addition, except where a decision must be set aside prior to the award of damages, a Member State may make provision that, after the contract has been concluded in accordance with Article 1(4), Article 2(3), Articles 2a to 2de or Article 2f, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.

7. The Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.

8. Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 234 of the EEC Treaty and independent of both the contracting authority and the review body.

The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.

Article 2a
1. The Member States shall ensure that the persons referred to in Article 1(3) have enough time for effective review of the decisions taken by the contracting authorities, by adopting the necessary provisions which respect the minimum conditions states in paragraphs 2, 3 and 4 of this Article and Articles 2b, 2c and 2d.

''2. The contract may not be concluded following a decision to award a public contract falling within the scope of the Directive 2004/18/EC before the expiry of a period of at least ten calendar days with the effect from the day after the date on which the contract award decision is communicated to the tenderers concerned by fax or electronic means. The communication of the award decision to each tenderer shall be accompanied by a summary of the relevant reasons referred to in Article 41(2) of Directive 2004/18/EC.''

''3. By way of derogation from paragraph 2, in cases of urgency referred to in Article 38(8) of Directive 2004.18/EC, the Member State may make provision that a contract may not be concluded following the decision to award a public contract before expiry of a period of at least seven calendar days from the day after the date on which the contract decision of communicated to the tenderers concerned by fax or electronic means. This period shall be automatically extended by three calendar days which a person referred to in Article 3f notifies, within this period, the contracting authority concerned by fax or electronic means of his intention to seek review. This communication of the award decision to each tenderer concerned shall be accompanied by a summary of the relevant reasons referred to in Article 41(2) of Directive 2004/18/EC.  The Member States may apply the first paragraph in the case of contracts based on a framework agreement or contracts awarded as part of dynamic purchasing systems within the meaning of Articles 1(5) and 1(6) respectively of Directive 2004/18/EC.  4. The periods referred to in paragraphs 2 and 3 shall not apply in cases of extreme urgency within the meaning of Article 31(1)(c) of Directive 2004/18/EC. ''

Article 2b
''The Member States may provide that the periods referred to in Articles 2a(2) and (3) do not apply in the following cases:  a) in the case of contracts based on a framework agreement concluded with a single economic operator within the meaning of Article 32(3) of Directive 2004/18/EC;''

b) in the case of contracts based on a framework agreement concluded with several economic operators and when such contracts have been awarded by applying the terms set out in the framework agreement, without resorting again to competitions, within the meaning of the first indent of the second paragraph of Article 32(4) of Directive 2004/18/EC;  ''c) in the case of contracts awarded in connection with an open procedure within the meaning of Article 1(11)(a) of Directive 2004/18/EC and when the contracting authority has received only the bid of the tenderer who obtains the contract;  d) in the case of contracts awarded in connection with the restricted procedure within the meaning of Article 1(11)(b) of Directive 2004/18/EC and when, apart from the economic operator to whom the contract is awarded, all the economic operators invited to submit a bid have already been the subject of a decision by the contracting authority subject to review and which terminates their participation in the procedure for reasons other than the contract award criteria;''

e) in the case of contracts awarded with a negotiated procedure within the meaning of Article 1(11)(d) of Directive 2004/18/EC and when, apart from the economic operator to whom the contract is awarded, all the economic operators who have expressed an interest have already been the subject of a decision by the contracting authority subject to the review and which terminates their participation in the procedure for reasons other than the contract award criteria.''

Article 2c
''1. When the Member States provide that any application for review of a contracting authority’s decision taken in connection or in relation with a contract award procedure falling within the scope of Directive 2004/18/EC must be made before the expiry of a specified period, this period may not be less than ten calendar days with effect from the day following the date on which the contracting authority’s decision is communicated by fax or electronic means to the tenderer or candidate concerned. The communication of the contracting authority’s decision to each tenderer or candidate shall be accompanied by a summary of the relevant reasons referred to in Article 41(2) of Directive 2004/18/EC.''

2. The Member States which make use of the options provided for in Article 2a(3) may provide that the request for review referred to in paragraph 1 must be made within a period which may not be less than seven calendar days with effect from the day following the date on which the contracting authority’s decision is communicated by fax or electronic means to the tenderer or candidate concerned.

This period shall be automatically extended by three calendar days which a person referred to in Article 1(3) notifies, within this period, the contracting authority concerned by fax or electronic means of his intention to seek review.

The communication of the contracting authority’s decision to each tenderer or candidate shall be accompanied by a summary of the relevant reasons referred to in Article 41(2) of Directive 2004/18/EC.''

Article 2d
In the event of an application for review relating to circumstances in which the submissions by fax or electronic means referred to in Articles 2a and 2c did or did not occur, the body responsible for review procedures, independent of the contracting authority, shall in particular consider all reasonable and relevant evidence which is communicated to it by the authors of such submissions and which conform that the submissions were sent and were received by the addressees.

Article 2e
''1. The Member States shall ensure the effectiveness of the interlocutory procedures and the procedures for setting aside decisions referred to in Articles 1 and 2(1)(a) and (b) in the case of illegal direct awards of contracts, in the conditions stated in paragraphs 2, 3 and 4 of this Article.  2. When a contracting authority considers that it is permitted, in light of the applicable Community law, not to initiate a formal procedure consisting of prior public competition and competitive tendering for the award of the public contract, the amount of which exceeds the corresponding threshold of Directive 2004/18/EC, the contracting authority shall, prior to the conclusion of the contract in question, take the following two measures:''

a) adopt an award decision which has no contractual effect and can be subject of review within the meaning of Articles 1 and 2;

b) publish a notice ensuring a sufficient degree of publicity and containing at least the information mentioned in the Annex to this Directive.

The publication of a notice in accordance with Article 35(4) and 36 of Directive 2004/18/EC shall fulfil the conditions stated in paragraph (b) of this Article.

3. A contract may be concluded following the contract award decision referred to in paragraph 2 only after expiry of a period of at least tend calendar days with the effect from the day following the date on which the notice mentioned in paragraph 2(b) has begun to receive the required publicity.

4. Paragraphs 2 and 3 shall not apply, either in cases of extreme urgency within the meaning of Article 31(1)(c) of Directive 2004/18/EC or to contracts explicitly excluded in accordance with Articles 12 to 18 thereof.

Article 2f
''1. The Member States shall ensure compliance with, on the one hand, the periods provided for in Articles 1(4) and 2a(2) and (3) and, on the other, Article 2e, in teh conditions stated in paragraphs 2, 3 and 4 of this Article.  2. The conclusion of a contract in infringement of the provision referred to in paragraph 1 shall be considered invalid.''

3. By way of derogation from paragraph 2, the Member States may provide that a contract which has been concluded in infringement of the provisions referred to in paragraph 1 nevertheless has certain legal effects between the parties concerned or with regard to third parties, on account of the end of a limitation period which cannot be less than six months with effect from the effective date of conclusion.

The derogation provided for in the first subparagraph may also be applied when, in connection with a review seeking to have established and to draw the consequences of a conclusion in infringement of paragraph 1, a review body independent of the contracting authority finds that certain overriding reasons based on a general interest of a non-economic nature require in the case in point that some effects of the contract should not be challenged.

4. The Member States shall provide for a system of sanctions intended not to leave unpunished the conclusion of a contract in infringement of the provisions referred to in paragraph 1, when the circumstances referred to in paragraph 3 occur or when extreme urgency within the meaning of Article 31(1)c) of Directive 2004/18/EC has been invoked by a contracting authority whereas all the conditions provided for by this provision were not met.  The Member States shall notify the Commission of these provisions by [...] (18 months after the date of publication of this Directive in the Official Journal of the European Union) at the latest, and of any subsequent amendment as rapidly as possible. 

Article 3
1. The Commission may invoke the procedure for in paragraphs 2 to 5 when, prior to a contract being concluded, it considers that a clear and manifest serious infringement of Community provisions in the field of public procurement has been committed during a contract award procedure falling within the scope of Directive 2004/18/EEC.

2. The Commission shall notify the Member State and the contracting authority concerned of the reasons which have led it to conclude that a clear and manifest serious infringement has been committed and request its correction. It shall allow the Member State concerned a reasonable deadline for reply in view of the circumstances of the case in point.

3. By the deadline Within 21 days of receipt of the notification referred to in paragraph 2, the Member State concerned shall communicate to the Commission:

(a) its confirmation that the infringement has been corrected; or

(b) a reasoned submission as to why no correction has been made; or

(c) a notice to the effect that the contract award procedure has been suspended either by the contracting authority on its own initiative or on the basis of the powers specified in Article 2 (1) (a).

4. A reasoned submission in accordance with paragraph 3 (b) may rely among other matters on the fact that the alleged infringement is already the subject of judicial or other review proceedings or of a review as referred to in Article 2 (8). In such a case, the Member State shall inform the Commission of the result of those proceedings as soon as it becomes known.

5. Where notice has been given that a contract award procedure has been suspended in accordance with paragraph 3 (c), the Member State shall notify the Commission when the suspension is lifted or another contract procedure relating in whole or in part to the same subject matter is begun. That notification shall confirm that the alleged infringement has been corrected or include a reasoned submission as to why no correction has been made.

Article 4
1. ''The Member States shall communicate to the Commission each year information on the operation of their national review procedures during the preceding calendar years. The Commission shall determine, in consultation with the Advisory Committee for Public Procurement, the scope and nature of such information.''

2. Before the expiry of a period of six years (18 months after the date of publication of this Directive in the Official Journal of the European Union), the Commission, in consultation with the Advisory Committee for Public Procurement, shall review the manner in which the provisions of this Directive have been implemented and, if necessary, make proposals for amendments.

''The Annex appearing in Annex I to this Directive shall be added. ''

Article 5
Member States shall bring into force, before 1 December 1991, the measures necessary to comply with this Directive. They shall communicate to the Commission the texts of the main national laws, regulations and administrative provisions which they adopt in the field governed by this Directive.

Article 6
This Directive is addressed to the Member States.

Done at Brussels, 21 December 1989.

For the Council The President É. CRESSON