1. Effectiveness of the Remedies Directives
Budapest, 14 November 2017
Alvydas Stančikas
Head of Unit "Procurement legislation and enforcement"
DG GROW, European Commission

2. Aim
Procurement Directives set common principles and procedures across the Single Market
Their objectives could not be entirely achieved if economic operators were unable to ensure that their rights were observed across the EU through access to clear, rapid and effective review procedures
Adoption of the 'Remedies Directives' (Directives 89/665/EEC and 92/13/EEC, as amended by Directive 2007/66/EC)

3. Remedies Directives
Directives 89/665/EEC and 92/13/EEC, as amended by Directive 2007/66/EC
Require that decisions on contracts falling within the scope of the Procurement Directives taken by contracting authorities/entities may be reviewed effectively and as quickly as possible
Enable economic operators to enforce the rights conferred by Public Procurement Directives everywhere in the EU
Establish minimum EU review standards

4. Report from the Commission to the European Parliament and the Council
Evaluation
24 January 2017:
Report from the Commission to the European Parliament and the Council
Commission staff working document

5. Mandate for the evaluation
"Commission shall review the implementation of this Directive and report to the European Parliament and to the Council on its effectiveness, and in particular on the effectiveness of alternative penalties and time limits".
Article 4a of Directive 89/665/EEC and
Article 12a of Directive 92/13/EEC,
both as amended by Directive 2007/66/EC
REFIT evaluation - the European Commission's Regulatory Fitness and Performance programme

6. Sources of information
the study 'Economic efficiency and legal effectiveness of review and remedies procedures for public contracts'
an open online public consultation
consultations with Member States
a number of targeted consultations with experts and practitioners in public procurement litigation
a review of national legislation and case law

7. Challenges
Difficulty to analyse the effects of the Remedies Directives in isolation from the purely national rules and procedures
Very limited availability of data

8. Implementation by Member States I
Variety of solutions on the nature of review bodies (15 MS with administrative review bodies and 13 MS with judicial bodies)
Different approaches to locus standi beyond the minimum requirements of the Remedies Directives
Interim measures, set aside decisions and damages – considerable differences depending on legal traditions
Automatic debrief to tenderers – in all MS
Compliance with the minimum standstill period – all MS
Ineffectiveness – all MS

9. Implementation by Member States II
Differences in time limits for pre-contractual remedies
No specific evidence that time limits that follow the structure of the Remedies Directives are too long or too short
Differences in approaches to the automatic suspension
Alternative penalties: the majority of Member States provided in their national law both fines and/or the shortening of the duration of the contract.
Alternative penalties sporadically used and perceived as the least effective remedy

10. Stakeholders' perceptions "
A clear majority of respondents to the public consultation considered that the Remedies Directives make public procurement process:
more transparent (80.59% of respondents)
fairer (79.42% of respondents)
more open and accessible (77.65% of respondents)
more compelling for the contracting authorities to comply with substantive public procurement rules (81.77% of respondents)

11. Actual usage of the provisions
During : Around first instance decisions across MS, with more than coming from Sweden (11 114) and Poland (10 570) Around second instance decisions (for MS where information was available: CZ, CY, DE, DK, EE, HU, IE, LT, LU, RO, SE, SI) Around 800 third instance decisions (information available only for EE, LT and SE) The most frequent type of remedy sought: set aside decisions.

12. Nature of the review body
75% of respondents to the public consultation consider that procedures before ordinary courts take generally longer and result in lower standards of adjudication than the procedures before specialised administrative review bodies

13. Average length of review procedures in months (review before administrative body)

14. Average length of review procedures in months (review before the ordinary courts)

15. Costs
Divergent fee systems in Member States (fixed flat rates or fees depend on the characteristics of the contract)
In general, no dissuasive effect on access to remedies identified
In some Member States access to review is free (e.g. Sweden, Latvia, France and Spain)

16. Clarity of the Remedies Directives
Aspects that could be made clearer according to stakeholders:
The interplay between the Remedies Directives and the new legislative package on public procurement (in particular, modification and termination of contracts and 'light regime')
Procedural aspects (e.g. criteria for lifting the automatic suspension, for granting interim measures and for awarding damages)
Institutional aspects (e.g. independence of first instance administrative review bodies, professional standards for members of such bodies)
Fees
Protection of business secrets in the review procedures

17. National approaches
Problems rooted rather in national laws and practices and not in the Remedies Directives
Examples given by respondents to the public consultation:
A high number of complaints due to the lack of court fees
Too lengthy review procedures due to insufficient allocation of human resources by MS
The instances of non-enforceability of the review decisions
Difficulties in ensuring consistency in the case-law of first instance review bodies
The absence of effective remedies in procedures below the EU thresholds having a cross-border interest

18. Relevance
The results from the public consultation concerning the ranking of relevance of the provisions of the Remedies Directives:

19. Coherence with other EU policies
The right to an effective remedy – general principle of EU law
The Remedies Directives at the core of public procurement legislation as they allow bidders to enforce their substantive rights
Generally aligned with the new 2014 legislative package on public procurement, in particular to cover the concession contracts subject to Directive 2014/23/EU
No possible conflict with other policy fields identified

20. Conclusions
The Remedies Directives largely meet their objectives
Neither major nor urgent need to amend the Remedies Directives identified and therefore, no legislative proposal from the Commission to amend the Directives
Despite the overall positive conclusion, shortcomings identified:
certain aspects of the Remedies Directives need further clarification
information on national remedies systems not collected in a structured manner and is rarely used for policy making purposes

21. What do we propose?
Improved data gathering and promotion of transparency via the Remedies Scoreboard
Promotion of cooperation between first instance review bodies
Guidance: e.g. the interplay between the Remedies Directives and the new legislative package, criteria to lift the automatic suspension
Consistent enforcement activities and monitoring (Art. 258 TFEU)

22. Network of first instance review bodies
First meetings March and October 2017
Work areas:
Exchanges of experiences
Guidance notices
Data and indicators on the efficiency of remedies systems (Scoreboard)

23. Additional information -Public Procurement Package

24. Public procurement package Adopted 3 October 2017
1) a Communication on Public Procurement - Commission's strategy for improving PP 2) a Communication on a voluntary ex-ante mechanism for large infrastructure projects (SMS) 3) a Recommendation on professionalisation of public procurement to Member States 4) a draft guidance document on procurement of innovation – launch of targeted consultation

25. 1/ Communication: Making public procurement work in and for europe
PP is 14% GDP: a strategic area
A partnership to improve the PP in practice
The Commission is ready to play its part
6 Priority areas :
1. Boost strategic procurement (green, social, innovative)
2. Professionalise public buyers
3. Increase access to procurement markets (SMEs, IPI)
4. Improve transparency, integrity, data
5. Boost the digital transformation of PP
6. Cooperate to procure together
PP is a strategic area for policy makers.
not just an administrative process, but an opportunity to deliver value for public money (14% of GDP!).
A partnership to improve the PP in practice. Beyond 2014 legal reform, improvement needs smart implementation of the new rules.
The Commission is ready to play its part. We will develop a range of support tools, (guidelines, best practices) for authorities.
6 PRIORITIES :
1. Wider uptake of strategic procurement
55% of tenders use lowest price only
Boost green, social and innovative procurement through guidance and best practices
Support for strategic sectors (IT, health, construction)
2. Professionalising public buyers
Encourage Member States to develop professionalisation strategies
Ensure buyers have the needed skills and competences
Provide necessary tools and support
3. Increase access to procurement markets
SMEs win only 45% of contracts
Make PP more atttractive for companies, also Xborder
Open international procurement markets (IPI!)
4. Improving transparency, integrity, data
Enable reporting of corruption
protecting whistleblowers against retaliation
More and better data, setting-up contract registers
5. Boosting the digital transformation of PP
Legal obligation in October 2018, but real benefits if all steps of PP process are digitalised
Roll-out of eProcurement is slow
Continue to provide technical & financial support to MS
6. Cooperating to procure together
Only 11% of procedures through cooperative PP
More cooperation leads to better outcomes
Joint procurement by multiple MS facilitated

26. 2/ Voluntary ex ante assessment mechanism for large infrastructure projects
A helpdesk > 250 million €
A VOLUNTARY ex ante notification mechanism > 500 million €
an information exchange mechanism
What?
A helpdesk, to clarify issues before the project is mature enough to be notifiable under the mechanism.
A VOLUNTARY ex ante notification mechanism intended to give comfort to the promoters, once the project is mature enough, that their procurement procedures are in line with the EU rules.
an information exchange mechanism to learn from each other's experience with large infrastructure projects.
Projects with high importance for a Member State or the internal market:
250 million for the helpdesk, and
500 million for the notification.
Sectors: mainly in transport, energy, non-residential constructions and ICT.

27. 3/ Recommendation on professionalisation of procurement
GOAL: To facilitate uptake of professionalisation policies in MS  for the overall improvement of competences 3 Pillars: 1. Defining long term professionalisation strategies 2. Getting the right people with the right set of skills 3. Provide tools and support for strategic thinking
To facilitate uptake of professionalisation policies in MS: - NOT to prescribe a specific model  but provide framework of reference and good practices Definition of Professionalisation: NOT to create a “profession"  but lead to the overall improvement of competences A collaborative process:  Member States  IOs  across the Commission
Recommendations 1-2: Defining the architecture for professionalisation of public procurement Long term professionalisation strategies : -in coordination across policies (eGovernment), inclusive. - encouraging contracting authorities to professionalise - expertise and support of CPBs, training institutions, etc.
Recommendations 3-4-5: Support professionalisation of procurement officials Getting the right people with the right set of skills -defining the skills into competence framework -initial and lifelong training, innovative or eLearning tools, cooperation with academia -sound human resources management: recognition, career planning and motivational schemes
Recommendation : Develop systems, tools and lean methodologies to support professional procurement practice Provide support for practitioners: -uptake of IT tools, eprocurement, access to information -data and transparency for integrity and fraud prevention -tools for strategic thinking: templates, GPP criteria -technical assistance via helpdesks, exchange of good practices, communities of practice

28. Benefits of PP of Innovation?
4/ Targeted consultation on draft Guidance on Procurement of Innovation
Benefits of public procurement of innovation (PPI) Improving  opportunities public service for innovative suppliers Guidance on : Importance of PPI How to develop policy for PPI How to attract innovators How to attract innovation How to use innovation friendly tools from Directive Feedback until 2 January 2018
Benefits of PP of Innovation?
Improving efficiency of public service
Creating opportunities for innovative suppliers
Helping the strategic aspects, such as green and social
Why Guidance?
Calls from stakeholders for guidance
Existing materials are either too brief or too specialised
Linking policy with legal tools and practical examples
Content
Importance of PPI
How to develop policy for PPI
How to attract innovators
How to attract innovation
How to use innovation friendly tools from Directive
Process
Feedback collected online until 2 January 2018
Guidance update based on comments
ISC for final adoption – end Q1 2018

29. growth/single-market/ public-procurement/strategy_en increasing-impact-public-investment-through-efficient-and-professional-procurement-0_en

30. Thank you for your attention!