1. The New Provisions of the Amended Remedies Directiveby
Peter Trepte/Jens Fejoe
« Public Procurement Review and Remedies » Ankara February 2008

2. 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

3. Basic principles
Effectiveness
National procedural autonomy

4. 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

5. 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

6. 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

7. 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

8. 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

9. Amended Remedies Directive
Dropped remedies
conciliation
attestation

10. 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

11. Amended Remedies Directive
Questions ? ??
????