The Remedies Directives set minimum national review standards to ensure that rapid and effective means of redress are available in all EU countries when an economic operator that has an interest in a public procurement procedure believes that it has been run without proper application of the EU Public Procurement Directives.
There are two Remedies Directives: one for the public sector and one for utilities.
The Remedies Directives were substantially amended by Directive 2007/66/EC.
The Remedies Directives provide for a ten-day standstill period between the award and the signature of a public contract, and make it necessary to inform all tenderers about the outcome of tender procedures. These Directives also include provisions related to the granting of interim measures to correct alleged deviations or prevent further damages, the setting aside of decisions taken unlawfully, the award of damages, as well as time limits for pre-contractual remedies, sanctions for ‘ineffectiveness’, and the possibility to introduce alternative penalties via fines or the limitation of contract duration. The Directives respect EU countries’ procedural autonomy and legal traditions.
On 24 January 2017, the European Commission published a report, accompanied by a detailed evaluation, on the operation of the Remedies Directives. The Commission concluded that the Directives have contributed to making the procurement procedure in EU countries more fair, transparent, open and efficient, which is essential to increase trust in public administration. Furthermore, the importance of the Directives is confirmed by the fact that economic operators are using them to challenge deviations from public procurement rules. Over four years (2009-2012), more than 50 000 first instance decisions were taken.
15 EU countries have set up first instance public procurement remedies bodies. In the remaining countries, an existing judicial review body is responsible for the review of procurement procedures. At their first meeting on 6 March 2017, delegates from 24 EU countries plus Norway and Switzerland discussed follow-up actions to the 2017 evaluation. These include:
In a 2015 Commission public consultation, a variety of stakeholders including contracting authorities, businesses, review bodies and courts, legal practitioners and academia pointed out that the Remedies Directives have a positive effect on the public procurement process. The replies to the consultation show that the Directives provide an effective way for rapid action when there is an alleged breach of EU public procurement rules. Stakeholders regarded the standstill period and the suspension of the contract award procedure where review proceedings are initiated as the most useful elements of the Directives.
The objective of this study was to assess the economic efficiency and the legal effectiveness of review and remedies procedures as modified in 2007.