The present consultation aims to collect the views of the contracting authorities (among which local municipalities or public bodies) on the operation of national review procedures and on proposals to improve the effectiveness of those procedures in the field of public procurement.
Directives 89/665/EEC (review procedures / public supply and public works contracts in traditional sectors) and 92/13/EEC (review procedures / public contracts in the water, energy, transport and telecommunications sectors) were designed to ensure effective implementation of the Directives on public procurement procedures. The opening up of public contracts to Community competition requires considerably stronger guarantees of transparency and non-discrimination, the effectiveness of which depends in particular on effective, rapid remedies at national level in the event of infringement of Community law on public procurement or of national rules transposing that law.
It has emerged, however, that not all public purchasers in the Member States are implementing Community law on public procurement procedures in a satisfactory manner. The fact that only a small percentage of calls to tender are published (16.2% for the European Union in 2002) and that the figure varies appreciably from one Member State, type of contracting authority and sector of activity to another (1), shows that the Directives are not yet fully effective. Clearly, it is not possible in this situation to take full advantage of genuine competition between potential tenderers throughout the Community.
Moreover, initial consultations launched by Commission departments with the Member States, economic operators and their representatives have revealed that the operation of national review procedures does not always make it possible to correct failures to respect Community law on public procurement effectively or quickly. It has also become apparent that the effectiveness of review mechanisms in the public procurement field varies appreciably from one Member State to another, which may discourage some economic operators from tendering for public contracts.
The process of revising the "remedies" Directives, which will not be launched until the ‘public procurement’ package is in force and the process of consulting all the interested parties is complete, will provide an opportunity to reassess and reinforce the effectiveness of the remedies provided for in Directives 89/665 and 92/13, as and where necessary.
At this early stage, the Commission departments feel that any amendments should merely adapt and improve certain provisions of the ‘remedies’ Directives, without altering the philosophy and principles which underlie them. For example, the principle of the Member States’ procedural autonomy will not be called into question. Member States will, in particular, retain the power to select a court, tribunal or independent authority competent to hear challenges relating to Community law on public procurement in accordance with their national law. However, the unsatisfactory situation brought about mainly by the very heterogeneous operation of Member States’ national review procedures, and recent developments in case law (2), require clarification of or greater precision in the existing legislative framework, in order to ensure that there are sanctions which are effective and proportionate and which have a deterrent effect on infringements of Community law on public procurement, especially the most serious infringements (direct award of contracts without prior notification).
Adoption of the "legislative package" coordinating public procurement procedures will require technical adjustments to the ‘remedies’ Directives, namely, references to the new Directives. Essentially, therefore, the proposal to amend the Directive, if adopted by the Commission, should clarify or strengthen the existing provisions.
Having exchanged views with the Member States’ representatives in the Advisory Committee for Public Contracts, and the economic operators and their representatives (lawyers and professional associations) on several occasions since 2003 using the Interactive Policy Making (IPM) tool (3), the Commission departments would now like to know what lessons the contracting authorities (e.g. local authorities and bodies under public law) draw from the operational procedures and mechanisms provided for in Directives 89/665 and 92/13 since they came into force.
The Commission departments have therefore drawn up a questionnaire (below) to enable the members to provide feedback, point by point. The contracting authorities are asked to complete the questionnaire and return it by 15 June 2004 (closed).
- Article 1(3), 1st sentence, of Directives 89/665 and 92/13 stipulates that review procedures should be available at least to any person having or having had an interest in obtaining a particular public contract (1st condition) and who risks or has risked being harmed by an alleged infringement (2nd condition).
- If your national legislation restricts review procedures to this category of person, who must satisfy these two conditions, what lessons do you draw you from that restriction?
- If your national legislation does not apply these two conditions, what advantages or disadvantages do you see in such a situation?
- Article 1(3), final sentence, of Directives 89/665 and 92/13 states: "In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review."
- If your national legislation provides for prior information of this kind, what lessons do you draw from the operation of this provision? If your national legislation does not provide for such information, what are your views on a mechanism of this kind?
- Article 2(1.a) and (1.b) of Directive 89/665
- In the light of the Alcatel (4) judgment, in which the Court of Justice interpreted Article 2(1.a) and (1.b) of Directive 89/665, should the ‘remedies’ Directives explicitly provide for a minimum period between the notification of an award decision and actual conclusion of a public contract?
- What should be the minimum period in which a contractor who has been harmed by an award decision can take action against it in order to have the signing of the contract suspended in good time?
- Do you think there should be a shortened period for seeking review in the context of an accelerated procedure, given that the signing of the contract might be urgent?
- Article 2(1.c) and Article 2(5) and (6) of Directive 89/665 and Article 2(1.d) and final sentence of Directive 92/13 concern the award of damages.
- In your view, are these provisions satisfactory?
- What, in your opinion, are the main obstacles encountered by contractors harmed by decisions when they bring an action for damages?
- Do you think it would be useful to lower/eliminate these obstacles?
- Under Article 2(3) of Directive 89/665 and Article 2(3) of Directive 92/13, review procedures need not necessarily have automatic suspensory effects on the award procedures to which they relate.
- If your national legal system provides for automatic suspensory effects, what lessons do you draw from the operation of this mechanism?
- If your national legal system does not provide for automatic suspensory effects, what advantages/drawbacks do you see in giving the authority competent for review procedures the power to suspend or uphold the award procedure?
- Under Article 2(4) of Directive 89/665 and of Directive 92/13, Member States may allow the competent authority, when it examines whether measures are appropriate, to take account both of the likely consequences of such measures for all parties liable to be harmed, and of the public interest, and to decide not to take such measures if their disadvantages might outweigh their advantages. A decision not to take interim measures is not prejudicial to other rights enjoyed by the person seeking those measures.
- If your national legal system provides for such a limitation, how would you assess its application to reviews which concern you?
- Article 2(5) of Directive 89/665 (and Article 2(1), final sentence, of Directive 92/13) allows for a contested decision by a contracting authority to be set aside (“set aside or declared illegal” in Directive 92/13).
- If your national legal system provides for such a procedure, what advantages/disadvantages have you observed?
- Article 2(6), 2nd sentence, of Directive 89/665 and Article 2(6), 2nd sentence, of Directive 92/13 allow the Member States to limit remedies to the granting of damages once the contract has been concluded.
- If your legal system provides for this limitation, how have you found it?
- If your legal system makes it possible for injured parties to obtain the suspension or setting aside, or an injunction cancelling an unlawful public contract, what lessons do you draw from it?
- If these possibilities are not offered by your Member State’s legislation, what do you think of them?
- Article 2(8) of Directive 89/665 and Article 2(9) of Directive 92/13 allows for the authorities competent for review procedures not to be judicial in character, provided that they justify the measures which they take in writing and that those measures may be the subject of review by a court or tribunal within the meaning of Article 234 of the EC Treaty.
- If your national legal system provides for or has, in the past, provided for obligatory prior administrative and/or hierarchical review, what lessons do you draw from it? If there is or has been such an obligation, how does/did it fit in with Article 2(1.a) of Directive 89/665, which provides for a review permitting interim measures to be taken at the earliest opportunity and by way of interlocutory procedures?
- If your national legal system involves independent authorities specialising in public contracts, what lessons do you draw from their operation?
- Do you think that authorities (independent of the contracting authority) which already exist in certain Member States (for example, an independent administrative authority, whether specialised or not, a Court of Auditors, Ombudsman, Public Prosecutor, Prefect etc.) or which might be created in future, should be given new prerogatives, so as to improve implementation of Community law on public procurement? These new prerogatives might, for example, consist in the power to refer a matter to a competent judicial or quasi-judicial authority for public procurement if there is an alleged infringement of the relevant Community law, particularly with a view to securing interim measures, the cancellation of unlawful decisions, or sanctions which are effective and proportionate and which have a deterrent effect.
What do you see as the advantages and disadvantages of such a proposal?
- What other limitations or difficulties have you encountered in the mechanism created by Directives 89/665 and 92/13?
- What improvements would you suggest?
(1) See the report entitled: "A report on the functioning of public procurement markets in the EU: benefits from the implementation of EU directives and challenges for the future” (159 KB), 3 February 2004, available in English only
(3) The results of the IPM consultations can be found on Your Voice in Europe