© OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Current Remedies Directives: History and Main Provisions.

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© OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Current Remedies Directives: History and Main Provisions Ankara, February 2008 Peter Trepte Barrister, London; of counsel, Grayston and Company, Brussels

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Why the Remedies Directives? l Inadequate national remedies l Non-specialised national tribunals l Inconsistent rulings l Ineffective remedies l No minimum rights l Inability of European Commission to address all cases

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Primary Innovation l Complaint mechanism l Available in national forum l Initiated by tenderers l Not: direct supervision hierarchical bureaucratic appeal audit

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Objectives l Not harmonziation of laws of the member states, but l Minimum criteria and safeguards to ensure protection of the rights flowing from the procedural Directives

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Remedies in the Public and Utilities Sectors l Similarity of approach but with material differences (fewer now); l Essential requirements are the same: to ensure that decisions taken by contracting entities in the context of contract award procedures falling within the scope of the relevant procedural Directives may be effectively and rapidly reviewed with regard to their compatibility with Community law in the field of public procurement

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Basic Provisions l Creation of three specific remedies in both sectors: interim measures, set aside of decisions and the award of damages l In utilities sector, either as above or: the award of damages and the award of dissuasive payments

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Effectiveness Problems l Circumventing availability of all remedies l Avoiding procedural directives through illegal direct awards ► new amending remedies directive

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Review Bodies l Identity of national review body is choice to be made by the member state l Can be judicial or independent and non- judicial. l Where the body is not judicial: it must give written reasons for its decisions Its decision will be subject of judicial review or review by another body which –is a court or tribunal within the meaning of Article 234 and –must be independent both of the contracting entity and the review body.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Independence of Review l The members must 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. l At least the president of this independent body must have the same legal and professional qualifications as members of the judiciary. l The independent body will take its decisions following a procedure in which both sides are heard and these decisions will, by means determined by each member state, be legally binding.