1989L0665 — EN — 14.07.1992 — 001.001 — 1
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►B COUNCIL DIRECTIVE
of 21December 1 989
on the coordination of the laws, regulations and administrative provisions relating to the
application of review procedures to the award of public supply and public works contracts
(89/665/EEC)
(OJ L 395, 30.12.1989, p. 33)
Amended by:
Official Journal
No page date
►M1Council Directive 92/50/EEC of18 June 1992 L 209 1 24.7.1992
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COUNCIL DIRECTIVE
of 21December 1 989
on the coordination of the laws, regulations and administrative
provisions relating to the application of review procedures to the
award of public supply and public works contracts
(89/665/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100a thereof,
Having regard to the proposal from the Commission (1),
In cooperation with the European Parliament (2),
Having regard to the opinion ofthe Economic and Social Committee (3),
Whereas Community Directives on public procurement, in particular
Council Directive 71/305/EEC of26 July 1971 concerning the
coordination ofprocedures f or the award ofpublic works contracts (4),
as last amended by Directive 89/440/EEC (5), and Council Directive 77/
62/EEC of21 December 1976 coordinating procedures f or the award ofpublic supply contracts (
6) as last amended by Directive 88/295/EEC (7),
do not contain any specific provisions ensuring their effective
application;
Whereas the existing arrangements at both national and Community
levels for ensuring their application are not always adequate to ensurecompliance with the relevant Community provisions particularly at astage when infringements can be corrected;
Whereas the opening-up ofpublic procurement to Community
competition necessitates a substantial increase in the guarantees oftransparency and non-discrimination; whereas, for it to have tangible
effects, effective and rapid remedies must be available in the case of
infringements of Community law in the field of public procurement. ornational rules implementing that law;
Whereas in certain Member States the absence of effective remedies or
inadequacy ofexisting remedies deter Community undertakings f romsubmitting tenders in the Member State in which the contractingauthority is established; whereas, therefore, the Member States
concerned must remedy this situation;
Whereas, since procedures f or the award ofpublic contracts are ofsuch
short duration, competent review bodies must, among other things, beauthorized to take interim measures aimed at suspending such aprocedure or the implementation ofany decisions which may be takenby the contracting authority; whereas the short duration ofthe
procedures means that the aforementioned infringements need to be
dealt with urgently;
Whereas it is necessary to ensure that adequate procedures exist in all
the Member States to permit the setting aside ofdecisions takenunlawfully and compensation of persons harmed by an infringement;
Whereas, when undertakings do not seek review, certain infringements
may not be corrected unless a specific mechanism is put in place;
Whereas, accordingly, the Commission, when it considers that a clear
and manifest infringement has been committed during a contract awardprocedure, should be able to bring it to the attention ofthe competent1989L0665 — EN — 14.07.1992 — 001.001 — 2
(1) OJ No C 230, 28. 8. 1987, p. 6 and OJ No C 15, 19. 1. 1989, p. 8.
(2) OJ No C 167, 27. 6. 1988, p. 77 and OJ No C 323, 27. 12. 1989.
(3) OJ No C 347, 22. 12. 1987, p. 23.
(4) OJ No L 185, 16. 8. 1971, p. 5.
(5) OJ No L 210, 21. 7. 1989, p. 1.
(6) OJ No L 13, 15. 1. 1977, p. 1.
(7) OJ No L 127, 20. 5. 1988, p. 1.
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authorities ofthe Member State and ofthe contracting authority
concerned so that appropriate steps are taken for the rapid correction ofany alleged infringement;
Whereas the application in practice ofthe provisions ofthis Directive
should be re-examined within a period off our years ofits implementa-tion on the basis ofinf ormation to be supplied by the Member Statesconcerning the functioning of the national review procedures,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. The Member States shall take the measures necessary to ensure
that, as regards contract award procedures falling within the scope ofDirectives 71/305/EEC, 77/62/EE, and 92/50/EEC (
1), decisions taken by
the contracting authorities may be reviewed effectively and, inparticular, as rapidly as possible in accordance with the conditions setout in the following Articles and, in particular, Article 2 (7) on the
grounds that such decisions have infringed Community law in the field
ofpublic procurement or nation rules implementing that law.
2. Member States shall ensure that there is no discrimination between
undertakings claiming injury in the context ofa procedure f or the award
ofa contract as a result ofthe distinction made by this Directive between
national rules implementing Community law and other national rules.
3. The Member States shall ensure that the review procedures are
available, under detailed rules which the Member States may establish,at least to any person having or having had an interest in obtaining aparticular public supply or public works contract and who has been or
risks being harmed by an alleged infringement. In particular, the
Member States may require that the person seeking the review musthave previously notified the contracting authority of the allegedinfringement and of his intention to seek review.
Article 2
1. The Member States shall ensure that the measures taken
concerning the review procedures specified in Article 1 includeprovision for the powers to:
(a) take, at the earliest opportunity and by way ofinterlocutory
procedures, interim measures with the aim ofcorrecting the allegedinfringement or preventing further damage to the interestsconcerned, including measures to suspend or to ensure thesuspension ofthe procedure f or the award ofa public contract or
the implementation ofany decision taken by the contracting
authority;
(b) either set aside or ensure the setting aside ofdecisions taken
unlawfully, including the removal of discriminatory technical,
economic or financial specifications in the invitation to tender, the
contract documents or in any other document relating to the contractaward procedure;
(c) award damages to persons harmed by an infringements.
2. The powers specified in paragraph 1 may be conferred on separate
bodies responsible for different aspects of the review procedure.
3. Review procedures need not in themselves have an automatic
suspensive effect on the contract award procedures to which they relate.
4. The Member States may provide that when considering whether to
order interim measures the body responsible may take into account theprobable consequences ofthe measures f or all interests likely to be1989L0665 — EN — 14.07.1992 — 001.001 — 3
(1) OJ No L 209, 24. 7. 1992, p. 1.▼M1
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harmed, as well as the public interest, and may decide not to grant such
measures where their negative consequences could exceed their benefits.A decision not to grant interim measures, shall not prejudice any other
claim ofthe person seeking these measures.
5. The Member States may provide that where damages are claimed
on the grounds that a decision was taken unlawfully, the contesteddecision must first be set aside by a body having the necessary powers.
6. The effects of the exercise of the powers referred to in paragraph 1
on a contract concluded subsequent to its award shall be determined bynational law.
Furthermore, except where a decision must be set aside prior to the
award ofdamages, a Member State may provide that, af ter the
conclusion ofa contract f ollowing its award, the powers ofthe body
responsible for the review procedures shall be limited to awardingdamages to any person harmed by an infringement.
7. The Member States shall ensure that decisions taken by bodies
responsible for review procedures can be effectively enforced.
8. Where bodies responsible for review procedures are not judicial in
character, written reasons for their decisions shall always be given.Furthermore, in such a case, provision must be made to guaranteeprocedures whereby any allegedly illegal measure taken by the reviewbody or any alleged defect in the exercise of the powers conferred on itcan be the subject ofjudicial review or review by another body which is
a court or tribunal within the meaning ofArticle 177 ofthe EEC Treaty
and independent ofboth the contracting authority and the review body.
The members ofsuch an independent body shall be appointed and leave
office under the same conditions as members of the judiciary as regardsthe authority responsible for their appointment, their period of office,
and their removal. At least the President ofthis independent body shall
have the same legal and professional qualifications as members of thejudiciary. The independent body shall take its decisions following aprocedure in which both sides are heard, and these decisions shall, bymeans determined by each Member State, be legally binding.
Article 3
1. The Commission may invoke the procedure for which this Article
provides when, prior to a contract being concluded, it considers that aclear and manifest infringement of Community provisions in the field ofpublic procurement has been committed during a contract awardprocedure falling within the scope of Directives 71/305/EEC and 77/62/
EEC.
2. The Commission shall notify the Member State and the contracting
authority concerned ofthe reasons which have led it to conclude that aclear and manifest infringement has been committed and request itscorrection.
3. Within 21 days ofreceipt ofthe notif ication ref erred to in
paragraph 2, the Member State concerned shall communicate to theCommission:
(a) its confirmation that the infringement has been corrected; or
(b) a reasoned submission as to why no correction has been made; or
(c) a notice to the effect that the contract award procedure has been
suspended either by the contracting authority on its own initiative or
on the basis ofthe powers specif ied in Article 2 (1) (a).
4. A reasoned submission in accordance with paragraph 3 (b) may
rely among other matters on the fact that the alleged, infringement isalready the subject ofjudicial or other review proceedings or ofa review
as referred to in Article 2 (8). In such a case, the Member State shall
inf orm the Commission ofthe result ofthose proceedings as soon as itbecomes known.
5. Where notice has been given that a contract award procedure has
been suspended in accordance with paragraph 3 (c), the Member State1989L0665 — EN — 14.07.1992 — 001.001 — 4
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shall notify the Commission when the suspension is lifted or another
contract procedure relating in whole or in part to the same subject matteris begun. That notification shall confirm that the alleged infringement
has been corrected or include a reasoned submission as to why no
correction has been made.
Article 4
1. Not later than four years after the implementation of this Directive,
the Commission, in consultation with the Advisory Committee forPublic Contracts, shall review the manner in which the provisions ofthisDirective have been implemented and, ifnecessary, make proposals f oramendments.
2. By 1 March each year the Member States shall communicate to the
Commission information on the operation of their national review
procedures during the preceding calendar year. The nature oftheinformation shall be determined by the Commission in consultation withthe Advisory Committee for Public Contracts.
Article 5
Member States shall bring into force, before 1 December 1991, the
measures necessary to comply with this Directive. They shallcommunicate to the Commission the texts ofthe main national laws,
regulations and administrative provisions which they adopt in the field
governed by this Directive.
Article 6
This Directive is addressed to the Member States.1989L0665 — EN — 14.07.1992 — 001.001 — 5