The New Provisions of the Amended Remedies Directive

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Presentation transcript:

The New Provisions of the Amended Remedies Directive by Peter Trepte/Jens Fejoe « Public Procurement Review and Remedies » Ankara 26-27 February 2008

Remedies for Suppliers before National Review Bodies Remedies Directives Remedies Directives 89/665 (public sector) 92/13 (utilities) Minimum standards: Review before Independent body General principles, in particular effective remedies Specified remedies: suspension; set-aside of remedies; damages

Basic principles Effectiveness National procedural autonomy

Amended Remedies Directive Dir 2007/66 amending Dir 89/665 and Dir 92/13 Entered into force 10 January 2008 But MS shall bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 20 December 2009

Amended Remedies Directive Explicit provisions with the purpose to make remedies in the MS more effective The new explicit provisions include strict interpretations of existing ECJ case law, e.g. time limits, standstill, notification New provisions, e.g. automatic suspension, ineffectiveness sanctions Upholds a series of provisions on national choice/discretion

Amended Remedies Directive Specificly New provisions on availability of review procedures New provisions on requirements for review procedures Stand still period and derogations herefrom Time limits for applying for review Ineffectiveness Infringements and alternative penalties

Amended Remedies Directive Specificly (cont.) Ineffectiveness Infringements of the Directive and alternative penalties Corrective mechanism Notice for ex ante transparency-content Committee procedure Implementation Review

Amended Remedies Directive Effectiveness Designed to give effective remedies/enforcement Effectiveness principle stated expressly Practical consequenses: Encouraged action by national legislators Focuses attention of Commission on the issue Publicity for suppliers of their rights Judicial development, e.g. Alcatel The requirements of the Directive probably more demanding than the general EU law principles

Amended Remedies Directive Dropped remedies conciliation attestation

Amended Remedies Directive National procedural autonomy Member States have discretion on how to set up the system within the Directive Many explicit provisions on discretion: Review procedures need not necessarily have suspensive effect MS provide only for damages after contracts concluded When negative consequences exceed the benefits MS may deny interim remedies Standing to be given to suppliers under detailed rules that MS establish Remedies may be divided between different review authorities States may require a set aside as a condition for damages

Amended Remedies Directive Questions ? ?? ????