The full force and effect of Public Procurement remedies - the general principles of directive 2007/66

Abstract: Apart from the substantive public procurement rules, harmonising national provisions for the award of public contracts, the Community also strives to ensure compliance with those rules. For that purposes the Remedies Directive 89/665/EEC has been adopted to ensure that effective and rapid remedies are available to aggrieved bidders. This directive has recently been amended by Directive 2007/66/EC to deal with the ineffectiveness of public procurement remedies as identified in practice. Above all, the amended Remedies Directive officially introduces a standstill period between the award decision and the signature of the contract and provides for the sanction of ineffectiveness when the most serious breaches of public procurement rules occur, i.e. illegal direct award and race to signature. Although the amendment is not due to be implemented until December 2009, it is argued in this thesis that these two innovations of the new Remedies Directive should be applicable already today. It is our belief that the ECJ has already introduced the standstill period with the Alcatel judgment, whereas the recent Commission v Germany judgments show that illegal direct award may result in the termination of the contract. Furthermore, we are of the opinion that respecting the standstill period and the sanction of ineffectiveness transpire from the general principles of Community law such as the principle of effectiveness and effective judicial protection. In order to comply with the principle of effectiveness in the field of public procurement, it is necessary to ensure the full force and effect of the substantive and the Remedies Directive and protect the rights of an individual to have public contracts awarded in a transparent, open and non-discriminatory manner. Similarly, effective judicial protection, when applied to this area, demands that all aggrieved bidders have the right to obtain an effective remedy against measures, which they consider to be contrary to the principles laid down in substantive public procurement directives. Since the existing remedies under Directive 89/665/EEC do not comply with these requirements, established case law on general principles like Simmenthal and Johnston demands that the conflicting nation legislation is set aside. In the present case, the legislation to be disapplied is the national legislation implementing Article 2(6) of Directive 89/665/EEC, since it is this Article that prevents the disappointed tenders from obtaining an effective remedy after the contract has been concluded. After the legislation is set aside, the national court can solve the case by correct interpretation of Directive 89/665/EEC in light of the Alcatel and the Commission v Germany judgments or by using the amended Remedies Directive 2007/66/EC as a guideline. Either way, the national court will ultimately be obliged to demand that the contracting authorities respect the standstill period and apply the sanction of ineffectiveness in cases of race to signature and illegal direct award.