EUROPEAN COMMISSION Brussels, 24.1.2017 SWD(2017) 13 final COMMISSION STAFF WORKING DOCUMENT EVALUATION OF THE MODIFICATIONS INTRODUCED BY DIRECTIVE 2007/66/EC TO DIRECTIVES 89/665/EEC AND 92/13/EEC CONCERNING THE EUROPEAN FRAMEWORK FOR REMEDIES IN THE AREA OF PUBLIC PROCUREMENT/ REFIT EVALUATION Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL ON THE EFFECTIVENESS OF DIRECTIVE 89/665/EEC AND DIRECTIVE 92/13/EEC, AS MODIFIED BY DIRECTIVE 2007/66/EC, CONCERNING REVIEW PROCEDURES IN THE AREA OF PUBLIC PROCUREMENT {COM(2017) 28 final}



TABLE OF CONTENTS 1.Executive summary 2.Introduction 3.Background - The Remedies Directives 3.1.The founding Remedies Directives (Directives 89/665/EEC and 92/13/EEC) 3.2.Directive 2007/66/EC 3.2.1.Automatic debrief and ‘standstill period’ 3.2.2.Time limits for pre-contractual remedies 3.2.3.An automatic suspension 3.2.4.Ineffectiveness 3.2.5.Time limits for bringing an action for ineffectiveness 3.2.6.Alternative penalties 3.3.Other aspects related to remedies 3.3.1.Costs of proceedings 3.3.2.Time-limit for the duration of the review procedures 4.Evaluation — general aspects 4.1.Intervention logic 4.2.Evaluation criteria and evaluation questions

5.Methodology 6.Implementation — state of play 6.1.First instance review bodies 6.2.The right to bring an action or to appear before a court 6.3.Interim measures, set aside decisions and damages 6.4.Automatic debrief and ‘standstill period’ 6.5.Automatic suspension 6.6.Ineffectiveness 6.7.Alternative penalties 6.8.Time limits for review 6.8.1.Pre-contractual remedies 6.8.2.Ineffectiveness 6.8.3.Damages 7.Answers to the evaluation questions 7.1.Effectiveness 7.1.1.Actual usage of the provisions 7.1.2.Effectiveness in meeting the objectives 7.1.3.Factors affecting the effectiveness 7.1.4.Deterrent effects of the Remedies Directives 7.1.5.Conclusions — effectiveness:

7.2.Efficiency 7.2.1.Cost / benefits 7.2.2.Overall cost/benefit relationship 7.2.3.Administrative burden 7.2.4.Conclusions — efficiency: 7.3.Relevance 7.3.1.Stakeholders’ views on relevance 7.3.2.Actual usage of the provisions 7.3.3.Conclusions — relevance: 7.4.Coherence with other policies 7.5.The EU added value 8.Conclusions Annex 1 — Case-law concerning remedies in the area of public procurement Annex 2 — Synopsis report of consultation activities Annex 3 — Summary of open online public consultation Annex 4 — Questionnaire circulated to Member States on 15/10/2015 (deadline to reply: 23/11/2015) Annex 5 — National measures transposing Directive 2007/66/EC Annex 6 — Types of first instance review bodies in Member States as of March 2016 Annex 7 — The use of VEAT notices by member state in the period 2009-2012 Annex 8 — Implementation of alternative penalties by Member State

Annex 9 — Time limits by Member State Annex 10 — Length of review Annex 11 — Provisions for the costs of review procedures by Member State Annex 12 — The number of second instance decisions in 2009-2012 Annex 13 — The number of third instance decisions in 2009-2012 Annex 14 — Frequency of remedies sought in 2009-2012 Annex 15 — Glossary INDEX OF TABLES Table 1: Number of decisions by Member State and year in 2009-2012 Table 2: Number of decisions by Member State and year in 2012-2014 Table 3: Effectiveness of the Remedies Directives — transparency Table 4: Effectiveness of the Remedies Directives — fairness Table 5: Effectiveness of the Remedies Directives — openness and accessibility Table 6: Legal practitioners’ perceptions of the impact of the remedies —percentage of respondents Table 7: The interest of economic operators v contracting authorities Table 8: The cost of review (mean and median) by economic operators and contracting authorities Table 9: The cost of review as a percentage of the size of contract Table 10: Total cost of review according to legal practitioners, by different contract sizes

Table 11: Standstill periods between the award decision and the conclusion of the contract (in days) INDEX OF FIGURES Figure 1: Intervention logic model Figure 2: The number of VEAT notice published in OJEU/TED by year 2009-2015 Figure 3: The share of VEAT notices published in OJEU/TED 2009-2015 by country Figure 4: Perceptions of improvement of public procurement aspects Figure 5: Estimated length of the review in first instance (pre-contractual remedies 2009-2012) Figure 6: Dispersions of length of review in first instance (pre-contractual remedies 2009-2012) Figure 7: Average length of review procedures in months (review before the ordinary courts) Figure 8: Average length of review procedures in months (review before administrative body) Figure 9: Dispersion of review fees within Member States (for contract values of EUR 250 000, EUR 1 million, and EUR 10 million) Figure 10: Dispersion of review costs as a percentage of the size of contract (estimates by Member States) Figure 11: Relevance of different provisions of the Remedies Directive Figure 12: Remedies Directive’s provisions from the most relevant to the least relevant Figure 13: The share of responses to public consultation by participant’s category 1.Executive summary Background

The EU Public Procurement Directives (the ‘Procurement Directives’) regulate award procedures and limited aspects of the execution of public contracts and concession contracts (the ‘contracts’) above certain thresholds. Experience in implementing the Procurement Directives has shown that 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 procedures. Directives 89/665/EEC and 92/13/EEC were adopted to this end. Directives 89/665/EEC and 92/13/EEC were thoroughly amended by Directive 2007/66/EC to improve the effectiveness of review procedures concerning the award of public contracts and to ensure better compliance with EU law, especially at a time when breaches can still be corrected. In particular, the Directive introduced a mandatory standstill period between the decision to award a contract and the conclusion of the contract in question. To help address problems encountered by unsuccessful tenderers in relation to the access of relevant information specifying reasons why their offers were rejected, the Directive introduced an automatic debrief to tenderers at the time of the contract award decision. The Directive also provided for the sanction of contract ineffectiveness to address illegal direct awards which are considered as the most serious breach of Union law in the field of public procurement. Directives 89/665/EEC and 92/13/EEC as amended by Directive 2007/66/EC require the Commission to review their implementation and to report to the European Parliament and to the Council on its effectiveness, and in particular on the effectiveness of the alternative penalties and time limits. In December 2012, the Commission launched a regulatory fitness and performance programme (REFIT) and as a result the Commission identified Directive 2007/66/EC as legislation that should be evaluated in order to determine whether it contains any unnecessary or disproportionate regulatory burden which could be removed and, more generally, whether it delivers on its objectives and remains fit-for-purpose, considering the major changes that took place for the EU Public Procurement Directives. For the sake of simplification, any reference in this document to the Remedies Directives is understood as referring to Directives 89/665/EEC and 92/13/EEC as amended by Directive 2007/66/EC unless indicated otherwise. Findings This evaluation assesses the functioning of the Remedies Directives, i.e. whether following their amendments by Directive 2007/66/EC, the Remedies Directives have achieved their objectives and whether they are still fit-for-purpose today. The five evaluation criteria are: 1) effectiveness; 2) efficiency; 3) relevance; 4) coherence with other policies and 5) EU added value. There is currently no EU-wide monitoring and evaluation system of remedies action in Member States in place. Data for remedies on public contracts above thresholds brought in each Member State are not collected in a structured, coherent and systemic manner that would allow analysing the results obtained in an automated and easily comparable way. For this reason, the proper measurement or estimation of the effects of the Remedies Directives is difficult and requires additional actions (e.g. one-off data collection and manual analysis, as it was the case in the current evaluation). Various sources of information were used to collect evidence on the functioning and added value of the Directives', with the following conclusions: (I)In terms of effectiveness, the Remedies Directives have generally met their objectives of: increasing the guarantees of transparency and non-discrimination; allowing effective and rapid action to be taken when there is an alleged breach of the Procurement Directives; and providing economic operators with the assurance that all tender applications will be treated equally. The available data on the actual usage of the provisions added further evidence on the effectiveness of the Directive. In general, the remedies provided in the Remedies Directives were frequently used in most of Member States. There were around 50 000 first instance decisions across Member States during 2009-2012. The most frequently type of remedy sought is set aside decision, followed at distance by interim measures and the removal of discriminatory specifications. As far as the opinions of the stakeholders were concerned, a clear majority of respondents to the public consultation carried out by the Commission departments considered that the Remedies Directives have had a positive effect on the public procurement process. It is considered to be more transparent (80.59%), fairer (79.42%), more open and accessible (77.65%) and it provides greater incentive to comply with substantive public procurement rules (81.77%). As confirmed by virtual consensus among all the interested parties, Directive 2007/66/EC substantially increased the effectiveness of pre-contractual remedies by introducing a minimum standstill period between the notification of an award decision and the signing of the contract. Some national systems require that legal protection in public procurement procedures is provided at first instance by administrative review bodies rather than ordinary courts. As a general trend, these tend to be more effective. This is confirmed by a large majority of respondents to the public consultation (74.7%) who considered that procedures before ordinary courts take generally longer and result in lower standards of adjudication than the procedures before specialised administrative review bodies. In most cases, the costs of review procedures, albeit very divergent across Member States, do not seem to have decisive dissuasive effect on the access to remedies. Moreover, the Remedies Directives are also well balanced in addressing the interest of all parties concerned. In particular, 57.06% of respondents to the public consultation considered that the Directives evenly balance the interest of economic operators in ensuring the effectiveness of public procurement law and the interest of contracting authorities in limiting frivolous litigation. As a final point, the Remedies Directives are also effective as a deterrent to non-compliant behaviour in the area of public procurement. The Remedies Directives require the Commission in its report to the European Parliament and to the Council to pay particular attention to the effectiveness of alternative penalties and time limits. The evaluation has revealed that alternative penalties are sporadically used in Member States and were considered by respondents to the online public consultation (carried out by the Commission departments) and by some Member States to be the least relevant remedy. Nonetheless, views were expressed that all remedies provided for in the Remedies Directives contribute to their deterrent effect and provide for a comprehensive and effective system for sanctioning irregularities in public procurement. Concerning time limits, no specific evidence was gathered in the context of the evaluation that would demonstrate that time limits that follow the structure of the Remedies Directives are either too long and cause undue delays in the public procurement process or too short and thereby do not allow economic operators to enforce their rights. The evaluation revealed that certain aspects of the Remedies Directives could be made clearer. This is confirmed by the contributions received. This applies, for example, to matters such as the interplay between the Remedies Directives and the 2014 legislative package on public procurement, and the development of criteria to be applied to lift the automatic suspension of the conclusion of the contract following the lodging of a legal action. The evaluation also made it possible to identify problems that persist at national level. In particular, various stakeholders confirmed in the context of the public consultation that problems identified are rooted either in national legislation beyond the Remedies Directives or in national practices, and not in the Remedies Directives.

Finally, the Commission also recognises that in most Member States the information on national remedies systems is not collected in a structured manner, making the analysis of the performance of the Directives extremely difficult. In addition, it is rarely used for policymaking purposes (for example, identification of resources needed or abusive complaints; consistency of decisions based on effective searching tools; identification of contracting authorities/entities against which successful complaints are lodged most often; and identification of the aspects of procurement procedures that are appealed successfully). (II)In terms of efficiency, the Remedies Directives provide overall benefits in line with the intended impacts, both direct and indirect. There are clear indications that the benefits achieved through the Directives outweigh their costs. The costs to contracting authorities and suppliers of bringing forward or defending a review case (including direct and indirect costs) vary widely across the EU, typically accounting for 0.4%-0.6% of the contract value. It should be also noted that the costs would not reduce to zero if the Remedies Directives were repealed. On the contrary, they could be even higher because of national differences in the review and remedies rules and a lack of harmonisation at the level leading to a more cumbersome context for tenderers and others. The benefits are important in terms of sound financial management, the best price/quality ratio and deterrence, especially when considering the value of invitations to tender published on Tenders Electronic Daily. The 2011 evaluation of EU public procurement legislation in general estimated that savings of 5% realised for the 420 billion of public contracts that were published at EU level would translate into savings or higher public investment of over EUR 20 billion a year. The effective implementation of the Remedies Directives can therefore make such estimated savings from the Public Procurement Directives more likely to happen. Finally, the evaluation did not identify any administrative burden considered to be unnecessary for the operation of the Remedies Directives. (III)Concerning relevance, the objectives of the Remedies Directives are still relevant. The evaluation revealed that many provisions of the Directives are perceived as relevant across suppliers, contracting authorities and legal practitioners. Based on replies to the public consultation, the most relevant provision appears to be the standstill period (65% of respondents), followed by the suspension of the contract award procedure where review proceedings are initiated (62%) and the automatic debrief to tenderers (58%). Even if certain provisions are perceived to be of less practical value, they still contribute to the deterrent effect of the Remedies Directives. Another indicator of the relevance of the Remedies Directives is the actual use of the procedures they provide. In general, the remedies provided are frequently used in most Member States. There were around 50 000 first instance decisions across Member States during 2009-2012. The most frequently type of remedy sought is set-aside decision, followed at some distance by interim measures and the removal of discriminatory specifications. (IV)The Remedies Directives are coherent with other EU policies. As confirmed by the Court of Justice of the European Union, the right to an effective remedy is a general principle of EU law. In the light of this, the Remedies Directives are in line with the rights and general principles laid down in EU primary law concerning fundamental rights. The Remedies Directives lie at the core of public procurement legislation as they allow bidders to enforce their substantive rights. They were found to be generally aligned with the 2014 legislative package on public procurement, in particular to cover the concessions subject to Directive 2014/23/EU. Nonetheless, as already mentioned above in section referring to effectiveness, the interplay between the Remedies Directives and the new legislative package on public procurement could be further clarified. Finally, by improving the effectiveness of national review procedures, especially those dealing with illegal direct awards of contracts, the Remedies Directives also play an important role in effectively tackling breaches of Procurement Directives that could also entail irregularities with criminal implications. The evaluation has not found any possible conflicts with other policy fields, but rather the contrary. (V)In the Commission’s view, the Remedies Directives present a clear EU added value. It was generally confirmed by all sources of information used for the purposes of the evaluation that it is of utmost importance to have EU law requirements for remedies in public procurement. Ordinary courts under ordinary procedural codes cannot guarantee rapid and effective review as required by EU case-law. For instance, before a mandatory standstill period was introduced by Directive 2007/66/EC, no interim measure before ordinary courts was rapid enough to suspend conclusion of the awarded contract. Compared with other fields of EU law, public procurement rules have certain specificities. Firstly, as long as the contract is above the EU thresholds, the substantive public procurement rules are applicable, irrespective of the actual cross-border interest. Secondly, in each tendering procedure conducted by any contracting authority/entity there is a significant potential for numerous infringements (e.g. unlawful exclusion of tenderers, unlawful tender specifications, unlawful contract award criteria, use of the wrong procedures, accepting abnormally low tenders, conflict of interests, etc.) The role of the Commission, when dealing with individual complaints and potential infringements of EU law, is directed to ensuring future systematic respect for EU law, rather than obtaining remedies for individual parties to public tendering procedures particularly given the large volume of contracting authorities, tenderers and procedures in the EU and the technicalities involved in each individual process. Suitable rights of direct recourse for bidders are therefore indispensable for the correct functioning of the substantive public procurement rules and for the proper operation of the single market in the public sector. As confirmed by numerous stakeholders, the minimum level of harmonisation ensured by Remedies Directives is absolutely essential in this respect. Conclusions Based on the evaluation, the Commission concludes that the Remedies Directives, in particular the amendments introduced by Directive 2007/66/EC, largely meet their objectives in an effective and efficient way although it has not been possible to quantify the concrete extent of their cost/benefits. Even if specific concerns are reported in some Member States, they usually stem from national measures and not from the Remedies Directives themselves. In general qualitative terms, the benefits of the Remedies Directives outweigh their costs. They remain relevant and continue to bring EU added value. Despite the overall positive conclusion of the evaluation, certain shortcomings were identified, in particular as regards the clarity of some provisions and the availability of data. Data for remedies actions on public contracts above thresholds brought in each Member State are not collected in a structured, coherent and systemic manner that would allow comparing the results obtained. For this reason, the proper measurement or estimation of the effects of the Remedies Directives is more difficult. Based on the information gathered in this evaluation, the report from the Commission to the European Parliament and the Council on the effectiveness of Directive 89/665/EEC and Directive 92/13/EEC, as modified by Directive 2007/66/EC, concerning review procedures in the area of public procurement to which this document accompanies, draws the necessary operational conclusions and proposes relevant paths of action. 2.Introduction The Procurement Directives regulate award procedures of public contracts and concessions contracts (‘contracts’) above certain thresholds. The estimated value of tenders published in 'Tenders Electronic Daily'in 2014 amounted to EUR 421.31 billion, which is 3.32 % of EU GDP. The Procurement Directives apply common principles of transparency, equal treatment, non-discrimination, open competition and sound procedural management to award procedures to the benefit of economic operators across the single market. Open and well regulated procurement markets also contribute to a more efficient use of public resources and to the improvement in the quality of public purchases. The experience acquired with the Procurement Directives showed that to meet completely their objectives, economic operators had to be able to enforce the rights conferred by those Directives everywhere in the EU. Consequently, the 'Remedies Directives' (Directives 89/665/EEC and 92/13/EEC, as amended through Directive 2007/66/EC) were adopted as flanking measures. These Directives ensured that, based on minimum EU review standards, economic operators across the EU would have access to rapid and effective procedures for seeking redress in cases where they considered that contracts had been awarded in breach of Procurement Directives. This was, and is, crucial to making sure that public contracts ultimately go to the company which has made the best offer, and therefore to building confidence among business and the public that public procurement procedures are fair. They are also an indispensable complement to Commission enforcement actions in the field of public procurement, leaving the Commission to focus on cases in which essential matters at EU level are at stake. The Remedies Directives require the Commission to review their implementation and to report to the European Parliament and to the Council on its effectiveness, and in particular on the effectiveness of the alternative penalties and time limits. In December 2012, the Commission launched a regulatory fitness and performance programme (REFIT). The purpose of the REFIT programme was to:

identify opportunities to reduce regulatory costs and cut red tape; simplify regulation in order to meet policy goals; and achieve the benefits of EU regulation at the lowest possible cost. Fitness checks and evaluations of existing legislation are among the tools used by the REFIT programme to achieve these objectives. As the reform of the public procurement was followed up by the administrative burden programme and taken on board by REFIT, it was decided that the Remedies Directives should also be linked to REFIT, so that the regulatory fitness of the whole framework for public procurement would be assessed. Subsequently, the Commission Communication on "REFIT – results and next steps" identified the amendments introduced in the Remedies Directives by Directive 2007/66/EC as legislation that should be evaluated in order to determine whether it delivers on its objectives at reasonable costs, is relevant, coherent and has EU added value. Opportunity was therefore taken to perform the overall evaluation of the performance of the Directives and examine whether they remain fit-for-purpose. As far as the scope of this evaluation is concerned, it is important to note that Directive 2014/23/EU on the award of concession contracts introduced further amendments to Directive 89/665/EEC and Directive 92/13/EEC, mainly to extend their scope of application with regard to concessions. However, the deadline to turn Directive 2014/23/EU into national law elapsed on 18 April 2016, so its impact is not addressed in this evaluation, except for the aspect of coherence of the new legislative package on public procurement with the Remedies Directives. 3.Background - The Remedies Directives The Remedies Directives 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, on the grounds that such decisions have infringed the Procurement Directives. Most of the provisions in the Remedies Directives are mandatory and must be turned into national law. Those mandatory provisions constitute ‘minimum conditions to be satisfied by the review procedures established in the national legal systems’. Member States may introduce conditions that go beyond those laid down in the Remedies Directives, for instance by laying down similar or equivalent review procedures for public procurement under the EU thresholds, by granting to organisations that do not act as economic operators (e.g. trade associations) the right or capacity to bring an action or to appear before a court and by setting longer time limits for applying for review. However, there are a few provisions in the Remedies Directives that are optional and therefore Member States may choose not to transpose them. Optional provisions are, for example, the imposition on plaintiffs of the obligation to seek review first with the contracting authority and the possibility for review bodies (if certain conditions are met) not to declare a contract ineffective and impose instead alternative penalties. Directive 89/665/EEC, covering the public sector, and Directive 92/13/EEC, covering the utilities sector, are very similar in content. For the sake of simplification, any reference to Directive 89/665/EEC (and to contracting authorities) is understood to also refer to Directive 92/13/EEC (and contracting entities) unless indicated otherwise. 3.1.The founding Remedies Directives (Directives 89/665/EEC and 92/13/EEC) The founding Remedies Directives did not intend to fully harmonise the remedies systems in the area of public procurement. They laid down only ‘the minimum conditions to be satisfied by the review procedures established in domestic law to ensure compliance with the requirements of EU law concerning public procurement’. In fact, these Directives constituted (and still do today) a rare example of constraints placed on the principle of national procedural autonomy of Member States with a view to ensuring effective enforcement of EU rules at national level. The Remedies Directives are therefore an essential piece in the public procurement landscape and a unique example in EU law of giving full effect to EU rights at national level. The remedies to be provided by Member States under the founding Remedies Directives included the powers to: (a)take, at the earliest opportunity and by way of interlocutory procedures, interim measures to correct the alleged infringement or prevent further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any procedural decision taken by contracting authorities; (b)either set aside or ensure the setting aside of decisions 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 contract award procedure; and (c)award damages to persons harmed by an infringement. Directive 92/13/EEC (for the utilities sector) also provided powers to take, at the earliest opportunity, if possible by way of interlocutory procedures and if necessary by a final procedure on the substance, measures other than those provided for in points (a) and (b) with the aim of correcting any identified infringement and preventing injury to the interests concerned i.e. making an order for the payment of a sum, in cases where the infringement had not been corrected or prevented. As far as interim measures were concerned, the founding Remedies Directives only specified that Member States could provide that the body responsible for review procedures could take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and could decide not to grant such measures when their negative consequences could exceed their benefits. In particular, the Court of Justice of the European Union ('the Court') made it clear that granting interim measures could not be made conditional on bringing an action for annulment of the contested act. As far as annulment is concerned, there were no further provisions in the Remedies Directives on this issue except for the provision that specified that Member States could provide that where damages were claimed on the grounds that a decision was taken unlawfully, the contested decision had first to be set aside by a body having the necessary powers. How the remedy of setting aside of contracting authorities’ decisions operated depended on national implementing measures. The conditions for the award of damages also depended on national provisions. Directive 92/13/EEC only specified that ‘where a claim is made for damages representing the costs of preparing a bid or of participating in an award procedure, the person making the claim shall be required only to prove an infringement of Community law in the field of procurement or national rules implementing that law and that he would have had a real chance of winning the contract and that, as a consequence of that infringement, that chance was adversely affected’. The equivalent provision did not exist in Directive 89/665/EEC. Nonetheless, in its judgments in cases C-275/03 and C-70/06 Commission v Portugal and C-314/09 Strabag, the Court held that it was not possible for Member States to require proof of culpability as a precondition for an award of damages.

Under the founding Remedies Directives, Member States had also a wide discretion to decide which bodies would be responsible for hearing public procurement cases in first instance. Such bodies could be either judicial or not judicial in character. There were provisions in the founding Remedies Directives that guaranteed that when bodies responsible for review procedures were not judicial in character, written reasons for their decisions had to be given and there had to be the possibility of an appeal to a court (or to another independent body that is a court or tribunal within the meaning of Article 267 of the Treaty on the Functioning of the European Union –TFEU). The founding Remedies Directives also guaranteed that review procedures were available, at least, to any person having or having had an interest in obtaining a public contract who has been or risks being harmed by an alleged infringement. Furthermore, the founding Remedies Directives laid down a corrective mechanism that allowed the Commission to notify a Member State before the conclusion of a given contract when it considered that there had a been a clear and manifest infringement of EU public procurement law during the award procedure of that contract. The Commission had to state the reasons of the alleged breach and the Member State concerned had 21 calendar days to reply to the Commission. In any event, this corrective mechanism did not in practice oblige the Member State concerned to suspend, correct or cancel the award procedure. The Commission only exceptionally used the corrective mechanism. The case-law of the Court confirmed that such corrective mechanism was an option at the disposal of the Commission, which could even be used in paralel to an infringement procedure, but was not a pre-requisite for or a replacement of an infringement procedure. 3.2.Directive 2007/66/EC The Commission proposed the modernisation of the founding Remedies Directives following extensive consultations on their functioning with all major stakeholders, including Member States, contracting authorities, businesses, lawyers and professional associations. Both the consultations and the case-law of the Court revealed a certain number of weaknesses in the review mechanisms established by the founding Remedies Directives. As a result of these consultations, two key weaknesses were identified in the founding Remedies Directives: 1) the absence of a period allowing an effective review between a decision to award a contract and the conclusion of the contract in question. This resulted in ‘the race to signature’: contracting authorities who wished to make irreversible the consequences of the disputed contract award decision proceeded very quickly to the signature of the contract. 2) Second, it was impossible under the founding Remedies Directives to challenge illegal direct awards of public contracts, which are the most serious breaches of EU law in the area of public procurement. The purpose of modernising the founding Remedies Directives was therefore to improve the effectiveness of review procedures concerning the award of contracts and to ensure better compliance with EU law, especially at a time when the breaches can still be corrected. To a large extent, the concrete proposals codified the case-law of the Court in this area. Directive 2007/66/EC aimed to increase guarantees of transparency and non-discrimination and to open up public procurement to EU-wide competition, in line with the overall objectives of the Procurement Directives (i.e. to achieve best value for money). As mentioned in its recital 36, Directive 2007/66/EC sought to ensure full respect for the right to an effective remedy and to a fair hearing, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union. As the Court subsequently stated:‘Directive 89/665 gives specific expression to the general principle of EU law enshrining the right to an effective remedy in the particular field of public procurement’. While maintaining the guarantees introduced by Directives 89/665/EEC and 92/13/EEC explained above, Directive 2007/66/EC introduced the following key elements which are described in detail in the subsequent sections: (a) an automatic debrief at the time of the contract award decision and a ‘standstill period’; (b) time limits for pre-contractual remedies; (c) an automatic suspension of the contract award procedure where legal proceedings are brought against contracting authorities’ award decision; (d) the sanction for ‘ineffectiveness’; (e) time limits for ‘ineffectiveness’; and (f) alternative penalties. Finally, Directive 2007/66/EC adjusted the corrective mechanism to clarify that the infringement of EU public procurement law does not need to be considered ‘clear and manifest’ but rather ‘serious’. This refocus was the consequence of the strengthening of the effectiveness of national review procedures, in order to encourage those concerned to make greater use of the possibilities for review by way of interlocutory procedure before the conclusion of a contract. 3.2.1.Automatic debrief and ‘standstill period’ Before the adoption of Directive 2007/66/EC, contracting authorities were in a position to ensure that a disputed contract award decision was irreversible and that the only remedy available was damages. It sufficed to sign a contract at the moment of the award decision or right after without waiting for this decision to be challenged.

In its judgment of 28 October 1999 in case C-81/98, Alcatel, the Court ruled that ‘Member states are required to ensure that the contracting authority’s decision prior to the conclusion of the contract as to the bidder in a tender procedure with which it will conclude the contract is in all cases open to review in a procedure whereby an applicant may have that decision set aside if the relevant conditions are met, notwithstanding the possibility, once the contract has been concluded, of obtaining an award of damages’. In its judgment of 24 June 2004 in case C-212/02, Commission v Austria, the Court decided that an effective remedy presupposes first, an obligation to inform tenderers of the award decision and second, that it was possible for the unsuccessful tenderer to examine in sufficient time the validity of the award decision. As the Court ruled, ‘a reasonable period must elapse between the time when the award decision is communicated to unsuccessful tenderers and the conclusion of the contract in order, in particular, to allow an application to be made for interim measures prior to the conclusion of the contract’. The Court did not specify however any conditions for implementing these rules. These were clarified by Directive 2007/66/EC. Article 2a, paragraph 2, of Directive 89/665/EEC makes it clear that ‘a contract may not be concluded following the decision to award a contract before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenders and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision’. This provision clarifies also that the communication of the award decision to each tenderer and candidate concerned must be accompanied by a summary of the relevant reasons and a precise statement of the exact standstill period applicable. Based on the same provision, Member States may provide that the standstill period does not apply in cases where no publication of contract notice is required, there are no concerned candidates or in specific cases concerning contracts based on framework agreements or specific contracts based on a dynamic purchasing system (‘DPS’). 3.2.2.Time limits for pre-contractual remedies Following the modifications introduced by Directive 2007/66/EC, Article 2c of Directive 89/665/EEC states that where a Member State provides that any application for review of a contracting authority's decision taken in the context of a contract award procedure falling within the scope of Directive 2004/18/EC must be made before the expiry of a specified period, time limits for applying for pre-contractual remedies shall be at least 10 calendar days (or 15 calendar days if means of communication other than fax or electronic means are used) with effect from the same triggering events as for the standstill period. 3.2.3.An automatic suspension According to Article 2, paragraph 3, of Directive 89/665/EEC, as modified by Directive 2007/66/EC, ‘when a body of first instance which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period’. Member States have the choice as to whether the automatic suspension should continue at the stage of the second instance review. Furthermore, for reasons of effet utile, in some Member States the automatic suspension can be lifted by a body of first instance under the specific conditions established by Member States which, in particular, include the balancing of interests likely to be harmed and the public interest. 3.2.4.Ineffectiveness The remedy of ineffectiveness was introduced in particular to tackle illegal direct awards which are considered by the Court ‘the most serious breach of Community law in the field of procurement’. This remedy also codifies the case-law. Article 2d, paragraph 1, of Directive 89/665/EEC enumerates three situations in which ineffectiveness applies: (i) illegal direct awards; (ii) an infringement of the standstill period or the automatic suspension if this infringement has deprived the tenderer of the possibility to pursue pre-contractual remedies, where such an infringement is combined with an infringement of substantive public procurement rules and if that infringement has affected the chances of the tenderer to obtain the contract; and (iii) in cases where Member States have invoked the derogation from the standstill period for contracts based on a framework agreement or a DPS, where there is an infringement of the second indent of the second subparagraph of Article 32(4) or of Article 33(5) or (6) of Directive 2004/18/EC. Article 2d paragraph 2 of Directive 89/665/EEC stipulates that the consequences of a contract being considered ineffective must be provided by national law. National law might thus provide for the retroactive cancellation of all contractual obligations or limit the scope of cancellation to these obligations which still have to be performed. In the latter case, Member States must provide for alternative penalties. Article 2d, paragraph 3, of Directive 89/665/EEC allows Member States to provide that the review body may not consider a contract ineffective, if the review body finds that overriding reasons relating to a general interest require that the effects of the contract should be maintained. In this case, alternative penalties are instead applied. Pursuant to Article 2d, paragraph 4, of Directive 89/665/EEC, Member States may also provide that the sanction of ineffectiveness will not apply if the following conditions are met: (i) the contracting authorities consider that the award of a contract without a prior publication of a contract notice in the Offical Journal of the European Union / Tenders Electronic Daily (OJEU/TED) is permissible in accordance with Directive 2004/18/EC and Directive 2004/17/EC; (ii) contracting authorities publish in the OJEU/TED a voluntary ex ante transparency notice (‘VEAT’) expressing its intention to conclude the contract; and

(iii) contracting authorities do not conclude the contract before the expiry of a period of at least 10 days with effect from the day following the date of the publication of this notice. 3.2.5.Time limits for bringing an action for ineffectiveness According to Article 2f paragraph 1 of Directive 89/65/EEC, actions for ineffectiveness can be lodged within: (a) 30 days with effect from the day following the date on which contracting authorities published a contract award notice (provided that it contains reasons for a direct award) or the contracting authorities informed the tenderers concerned of the conclusions of the contract (provided that this information contains a summary of the relevant reasons); or (b) in other cases before the expiry of at least six months with the effect from the day following the date of the conclusion of the contract. 3.2.6.Alternative penalties Article 2e, paragraph 1, of Directive 89/665/EEC provides for alternative penalties where Member States might consider ineffectiveness to be inappropriate. Alternative penalties can also be applied in an optional manner, for instance: when the contract is not declared ineffective because of overriding reasons relating to a general interest; when ineffectiveness was declared only for those obligations which would still have to be performed (ex nunc); and in the case of infringements of the standstill period or the automatic suspension if that infringement, for example, is not combined with an infringement of substantive provisions. Article 2e paragraph 2 of Directive 89/665/EEC specifies that ‘alternative penalties must be effective, proportionate and dissuasive’. It can be either the imposition of fines on the contracting authority or the shortening of the duration of the contract. Member States can provide for both, the imposition of fines and the shortening of the duration of the contract. The same provision allows Member States to confer on the review body broad discretion to take into account all relevant factors, including the seriousness of the infringement, the behaviour of contracting authorities and the extent to which the contract remains in force. The same provision also makes it clear that the award of damages does not constitute an alternative penalty. 3.3.Other aspects related to remedies As seen above, the Remedies Directives are not exhaustive and they only provide for minimum harmonisation, which Member States may adapt in the national legislation transposing the Directives. Member States may also transpose some or all of their optional provisions. Finally, beyond those aspects that are regulated in the Remedies Directives, other aspects related to remedies such as costs and time limits for the duration of the review procedures are relevant for the overall performance of the remedies systems in Member States. 3.3.1.Costs of proceedings The Remedies Directives are silent about the costs of proceedings. Nonetheless, they require Member States to take the measures necessary to ensure that decisions taken by contracting authorities may be reviewed effectively. It is therefore indispensable to strike a balance between, on the one hand, the right of public authorities to impose (if they choose to do so) reasonable fees that cover actual administrative or judicial costs and deter frivolous litigation and, on the other hand, the right of economic operators to have easy access to an effective remedy. Cases on court fees in the area of public procurement have been recently brought before the Court in preliminary ruling proceedings. In its judgment of 6 October 2015 in case C-61/14 Orizzone Salute, the Court ruled that Article 1 of Directive 89/665/EC and the principles of equivalence and effectiveness must be interpreted as not precluding national legislation which requires the payment of court fees in public procurement cases. In paragraph 58 of its judgment the Court considered that the court fees which do not exceed 2 % of the value of the contract concerned are not liable to render practically impossible or excessively difficult the exercise of rights conferred by EU public procurement law.

Furthermore, in the same judgment, the Directive does not preclude the charging of multiple court fees to an individual who brings several court actions concerning the same award of a public contract or that individual from having to pay additional court fees in order to be able to raise supplementary pleas concerning the same award of a public contract within ongoing judicial proceedings. However, in Orizzone Salute the national court is required to examine the subject-matter of the actions submitted by an individual or the pleas raised by that individual within the same proceedings. If it finds that the subject-matter of those actions is not in fact separate or does not amount to a significant enlargement of the subject-matter of the dispute that is already pending, it is required to relieve that individual of the obligation to pay cumulative court fees. In its order of 7 April 2016 in case C‑495/14, Tita, the Court relied extensively on the resoning developed in Orizzone Salute and found compatible with Directive 89/665/EEC fees that amount to € 2 000 when the value of the contract is equal or inferieur to € 200 000, € 4 000 when the value of the contract is between € 200 000 and € 1 000 000 and € 6 000 when the value of the contract exceeds € 1 000 000. In its judgment of 15 September 2016 in case C-488/14, Star Storage, the Court found that Directive 89/665/EEC, read in the light of Article 47 of the Charter of Fundamental Rights, allows contracting authorities to require from applicants the constitution of a good conduct guarantee, provided that it is refunded to the applicant whatever the outcome of the action. Finally, other costs of proceedings, such as those deriving from the legal representation before review bodies, may also have an effect on the functioning of the national review systems. 3.3.2.Time-limit for the duration of the review procedures According to Article 1, paragraph 1, of Directive 89/665/EEC, Member States are to take the necessary measures to ensure that decisions made by contracting authorities may be reviewed effectively and, in particular, as rapidly as possible. One of the major elements that might impact the effectiveness of the rules on remedies is the time it takes to obtain a decision. It is in interest of both the contracting authority and economic operator to obtain a quick decision. Notwithstanding this, the review procedures should allow at least for the assessment of the legal elements of the case. 4.Evaluation — general aspects 4.1.Intervention logic The overall dynamics of various provisions foreseen under the Remedies Directives may be presented in a simplified form in an intervention logic model, which is shown in Figure 1 . Based on the diagram above, the Remedies Directives (‘Input’) stem from the need to deter non-compliant behaviour and to improve the effectiveness and efficiency of public procurement rules. These rules must be understood within the general objectives of facilitating the freedoms of the single market and rationalising public spending (‘Objectives’). Following the transposition of Directive 2007/66/EC, Member States introduced the various measures listed under (‘Activities’) to allow challenges before national review bodies. The initiative entered into force and produced direct results (‘Outcomes ’). These can be observed in the form of use of the appeal provision, which can lead to challenging a given decision or even suspending a procurement outcome or imposing penalties. The desired impact of the Remedies Directives is to make the procurement process more open, fair transparent and competive, and to increase non-domestic contracts awarded while trying to avoid additional effects such as an excessive amount of unnecessary actions (‘Intermediate impact’). The remedy actions incur costs for market players and contracting authorities. It must be however kept in mind that most of these costs are not imposed by the Remedies Directives themselves. Finally, within the freedom to undertake the remedy action it may be possible that there are also some additional or side effects in the form of ‘nuisance’ or unnecessary actions being brought forward. The intermediate impacts, less the potential additional effects, are expected to lead to final benefits in the form of procurement outcomes that reflect better value for money (‘Impacts’). 4.2.Evaluation criteria and evaluation questions The evaluation of the Remedies Directives has been carried out paying particular attention to the following evaluation criteria and questions in order to guide the analysis of the Directives’ functioning: Effectiveness: oHave the Remedies Directives been effective in meeting, or moving towards, the defined objectives? To what extent do the Directives contribute to transparency, fairness and openness of the market?

oWhat factors influenced the achievements observed? (e.g. to what extent are the various provisions envisaged in the Remedies Directives being used, in particular in relation to the use of complaints, appeals and damages?) Are there factors which are hindering this effect? Efficiency: What are the main costs and benefits of the Remedies Directives for contracting authorities and economic operators? Are there significant differences in costs or benefits between Member States? Does it create administrative burden? To what extent is the system being used unnecessarily? Do the benefits of the Directives outweigh their costs? Could the same benefits have been achieved at a lower cost? Relevance: Are the objectives of the Remedies Directives still relevant today? How has the original need for intervention evolved in recent years? In particular, is there any reason to believe that the initiative is no longer justified or that alternative provisions or soft measures are needed? Coherence with other policies: To what extent are the Remedies Directives consistent with each other, with the substantive public procurement rules and with regulatory measures adopted for the purposes of other policy objectives at EU and national level? EU added value: What is the ongoing added value of EU legislation in this field? What would be the effects if the Remedies Directives were to be withdrawn and Member States were free to adjust their national regulatory frameworks? Would these benefits have been achieved in the absence of the Directives? The main focus of the evaluation is whether the Remedies Directives contribute to better enforcement of substantive public procurement legislation at national level. 5.Methodology In December 2013, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs (or DG GROW) launched an evaluation of the amendments introduced to the Remedies Directives by Directive 2007/66/EC, announced in the Commission's Communication 'Regulatory Fitness and Performance (REFIT): Results and Next Steps'. This evaluation formed part of the Commission’s Agenda Planning and Work Programme. As already explained, the main goal of this evaluation was to assess the functioning of the Remedies Directives, i.e. whether they have been efficient, effective, coherent, relevant and whether there is an added value at the EU level. In order to reach the above objectives, the following sources were used in this evaluation: the Study ‘Economic efficiency and legal effectiveness of review and remedies procedures for public contracts’ (‘'the Study’), commissioned to an external consultant (information and data used in the Study were mainly collected through stakeholder interviews, contracting authority interviews, case studies and market data collection; as part of its task, the consultant also carried out surveys); a number of consultations described in detail in Annex 2 – synopsis report of consultation activities, namely: an open online public consultation, targeted consultations with Member States and with experts and practitioners in public procurement litigation; and review of national legislation and case-law. Furthermore, in line with the evaluation guidelines, an inter-service steering group was created to gather a broader view from other Commission departments. The inter-service steering group was composed, in addition to DG GROW, of the Commission’s Secretariat-General, the Legal Service, DG Justice and Consumers, DG Environment and DG Regional and Urban Policy. The group was consulted on various important aspects for the evaluation process. One of the difficulties encountered in the evaluation related to data gathering, which made it a challenge to assess the achievement of the objectives to date. For example, in some cases (e.g. evidence of the indirect deterrent effect of the Remedies Directive), the results were related to only a small number of Member States, so it was difficult to generalise the findings to the rest of the EU. Although the 'Impact Assessment Report – Remedies in the field of Public Procurement' that preceded Directive 2007/66/EC already mentioned the need to establish monitoring and evaluation system of remedies actions in Member States, this system was never established as at that time the focus was on the transposition of Directive 2007/66/EC into national laws of Member States. Moreover, in most Member States, the information on the operation of review procedures in the field of public procurement and more specifically on the complaints lodged by economic operators in the field of public procurement is not collected in a structured manner. Details of cases are not always publically available on online sites and, even when they are available, they are not often presented in a suitable electronic format that enables interrogation, collection and comparison of relevant data (such as dates, type of remedy sought, number of decisions produced and OJEU identification number). Notwithstanding these limitations, the evaluation was based on a review of best available quantitative and qualitative evidence of causality between actions and effected changes. It made extensive use of stakeholders' and experts' view as well as case studies on the functioning of the different provisions of the Directives. 6.Implementation — state of play

Directive 2007/66/EC, with significant and widespread delays, was fully transposed by all Member States. National transposition measures notified to the Commission are listed in Annex 5. 6.1.First instance review bodies Review bodies varying in nature have been established in each Member State: in some, there are independent administrative review bodies, be they specialised or not, while in others, a judicial body is responsible for the review. For details see Annex 6. 6.2.The right to bring an action or to appear before a court The locus standi differs across Member States. All Member States require the review procedure to be available to persons having or having had an interest, and some specifically provide that this includes operators not tendering (in the Czech Republic, Denmark, Hungary, Ireland and Slovenia). However, a number of Member States also provide that other undertakings are eligible to start a review procedure, which includes third parties (the Czech Republic, Denmark and Portugal). In other jurisdictions this may also include professional associations (Bulgaria, Denmark, Hungary and Poland), the Competition Authority (the Czech Republic, Denmark, Sweden and Slovenia), the contracting authority or other representatives of the State (France, Finland, Croatia, Hungary and Slovenia). 6.3.Interim measures, set aside decisions and damages In all Member States, provisions exist for the three compulsory types of remedies: (1) interim measures; (2) set aside decisions; (3) and damages. The conditions for granting interim measures are comparable in Member States (a strong prima facie case, a balance of interest test). However, courts and review bodies in Member States differ in their approaches to interim measures from adopting a very restrictive approach of hardly ever granting interim measures (e.g. Denmark, Portugal) to a more liberal one (e.g. Finland). Member States vary considerably in their approaches to set aside decisions, depending on their legal traditions. For instance, French courts look into possible breaches of any procurement rules while the UK courts focus on major breaches. Accordingly, the relevant grounds for annulment, the extent to which contracting authorities’ decisions are reviewed and the scope and effects of annulment are specified in national laws. As far as damages are concerned, divergent solutions are adopted by Member States, in particular, on the issue of causation or recoverable losses. As far as causation is concerned, some legal systems require a ‘certain casual’ link (Nordic countries); others, the balance of probabilities (Ireland), a serious chance (France) or a 'real and substantial chance' of being awarded a contract (the UK). As far as recoverable losses are concerned, in the Nordic and German systems the recovery of the loss of profits is exceptional whereas latin countries rely more on corrective and dissuasive effect of damages. Judges from supreme administrative courts in the EU, during a meeting organised on 22-23 October 2015 in Helsinki, considered that the right to damages lacked a sufficient level of harmonisation at EU level. 6.4.Automatic debrief and ‘standstill period’ In general terms, Member States apply the minimum standstill period, as required by the Remedies Directives (i.e. 10 or 15 days, depending on the means of communication used). In a number of cases, a longer standstill period has been specified. For example, in Bulgaria and Estonia the standstill period is 14 calendar days from notification of the candidates/participants in the public procurement procedure, while in Ireland it is a minimum of 14 calendar days if sent by fax or electronic means and 16 days if sent by other means. In Finland the standstill period is 10 days from the receipt of the decision only if a DPS is used, with the longer period of 21 days from the receipt of the decision applying in all other cases. The longest standstill period applies in Italy, where a period of 35 days applies from the date of the last communication of the contract award decision. Over half of the Member States have made use of the option to derogate from the standstill period and have applied the derogation in all three cases specified in the Remedies Directives. In a further eight Member States, the derogation has been used in one or two of the cases specified in the Remedies Directives. Only four Member States (Austria, Greece, Malta and Slovakia) have opted not to make use of the derogation at all, and therefore apply the standstill period set in their countries in all cases. 6.5.Automatic suspension With regard to the period of suspension of the contract award procedure, in almost half of the Member States, the period of suspension applies until a decision is taken on application for interim measures. In over half of the Member States the period of suspension applies until a decision is taken on the application for review (i.e. on the merits of the case), whereas in the vast majority of Member States the suspension can also be brought to an end at an earlier stage. For example, in the UK, courts may make an interim order bringing to an end the suspension of the contract award procedure. In eight Member States (Bulgaria, the Czech Republic, Finland, Ireland, Malta, Slovenia, Slovakia and UK), the period of suspension can apply until a decision on appeal against the first instance decision or longer. 6.6.Ineffectiveness

All Member States provide for ineffectiveness where a contracting authority has awarded a contract without prior publication of a contract notice in the OJEU/TED without this being permissible in accordance with the Procurement Directives. Moreover, Member States provide for ineffectiveness where certain infringements have deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies. Examples of infringements which can lead to a declaration of ineffectiveness in this case include cases where the award of the contract was not in compliance with the information contained in the contract notice, where the procurement procedure was withdrawn unlawfully or where there was a breach of the standstill provisions. Over half of the Member States also consider a contract ineffective if the Member State has invoked the derogation of the standstill period for contracts based on a framework agreement or a DPS and an infringement occurs. Two Member States (Slovenia and Slovakia) also refer to ‘other’ specific grounds for ineffectiveness, which include failure by the contracting authority to provide the court with the complete documentation of the tender (Slovakia), and where the contract was concluded as a consequence of a criminal offence committed by the contracting authority or by the successful tenderer (Slovenia). Most Member States allow either the cancellation of all contract obligations or the cancellation of only those contract obligations that are still to be performed, with the exception of Spain, which only provides for the cancellation of all contract obligations. The majority of Member States transposed the provisions on the VEAT notice, which, if specific circumstances are fulfilled, allows the contracting authorities to avoid the sanction of ineffectiveness. Based on the information available in the OJEU/TED, the use of this notice remains relatively stable since 2010 with around nine to ten thousands notices of this kind published every year. (see Figure 2 below). Source: OJEU/TED Based on TED data, since the deadline for transposition of Directive 2007/66/EC, there were more than 57 000 notices published across the EU-28. The majority of VEAT notice usage was by France (37 226 notices), followed far behind by Poland (5 453), the United Kingdom (3 256) and Denmark (2 504). The least frequent notice usage was in Romania (1), Hungary (4), Luxembourg (4) and Estonia (22). Source: OJEU/TED Altogether, 10 countries accounted for 95 % of the total VEAT notices published in the period 2009-2015. This is shown in Figure 3 above. Further details on the OJEU/TED publication levels are provided in Annex 7. 6.7.Alternative penalties Concerning alternative penalties, the majority of Member States transposed both fines and/or the shortening of the duration of the contract. Details are specified in Annex 8. However, alternative penalties are sporadically used in Member States. For example, in Austria, since the transposition of Directive 2007/66/EC in 2009, alternative penalties have overall been imposed in 20 to 30 cases. In Sweden, the Competition Authority must pursue cases for alternative penalties when an administrative court has first decided that a contract may remain valid, although it was awarded in breach of a standstill period. The Competition Authority has had the power to pursue these cases since 2011 and so far there have been around 60 non-mandatory applications and 30 mandatory applications for alternative penalties.

6.8.Time limits for review 6.8.1.Pre-contractual remedies The time limits for pre-contractual remedies laid down in Article 2c of Directive 89/665/EC are 10 calendar days if electronic means or fax are used and 15 calendar days if other means of communication are used. In both cases, these time limits apply with effect from the day following the date in which the decision is sent to the tenderer or candidate. If the application concerns a decision that is not subject to a specific notification, the time limit shall be at least 10 calenday days from the date of its publication. In the majority of Member States the time limits follow the structure of the Remedies Directives and thus lay down time limits that mirror the minimum standstill period. In some cases, such as the UK, a longer period of up to 30 days is set. 6.8.2.Ineffectiveness In cases of ineffectiveness, Article 2f of Directive 89/665/EC provides that an application for review must be made before the expiry of at least 30 calendar days. This takes effect from the day following the date on which the contracting authority published a contract award notice or the day following the date on which the contracting authority informed the tenderers and candidates concerned of the conclusion of the contract, and in any other case before the expiry of a period of at least six months with effect from the day following the date of the conclusion of the contract. Several Member States follow exactly the structure of the Remedies Directives while some others do not foresee that both the publication and the notification of the award decision trigger the start of the 30 days’ time limit. In any event, all Member States lay down a six months’ time limit. An overview of the applicable time limits is provided in Annex 9. 6.8.3.Damages The regime for the recognition of damages is not regulated by the Remedies Directives. It is therefore for the Member States to lay down the detailed procedural rules governing actions for damages, including time limits. Those detailed procedural rules must, however, be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). For example, in the Netherlands, the standard limitation for legal claims of five years is applied. In Germany the time limit is three years from the end of the year in which the damaged party has knowledge of both the damage and the identity of the tortfeasor. In France, the prescription period is governed by the prescription quadriennale. The time limit starts to run from the first day of January following the claimant’s becoming aware of the violation. In the preliminary ruling in case C-166/14 MedEval, the Court ruled that national legislation (in this case, Austrian) cannot make an action for damages conditional upon a prior declaration of ineffectiveness when the latter is subject to a six-month limitation period even when the award is not given publicity. The Court considered that such limitation would render impossible or extremely difficult to bring an action for damages. 7.Answers to the evaluation questions It is important to remind that the amendments introduced by Directive 2007/66/EC ensure only minimum harmonisation. The Remedies Directives leave Member States discretion in the choice of review procedures and the formalities. Moreover, the Remedies Directives also contain several optional provisions as explained above. In the light of this, the remedies process varies from Member State to Member State according to how the Remedies Directives have been implemented and enforced in national law, and more fundamentally, to how effective the administrative and judicial systems are. In general, Member States have used the discretionary powers conferred on them in the Remedies Directives to go beyond their minimum requirements. As a result, the implementation of rules on remedies in the public procurement area varies considerably across different Member States. One of the major challenges in the context of the present evaluation is therefore to distinguish the outcomes directly associated with the Remedies Directives from those that stem from national implementing measures and national approaches to enforcement. It is equally challenging to measure the deterrence effect of the Remedies Directives which is correcting any illicit practice before such a practice can be observed and working through the credibility of the system. It can be assumed that as long as there are no major deficiencies in the system established by the Remedies Directives, their deterrence effect is present. 7.1.Effectiveness 7.1.1.Actual usage of the provisions The first and most important indicator of the effectiveness of the Remedies Directives is the actual usage of provisions provided therein, especially as far as the newly introduced provisions are concerned (e.g. the usage of VEATs). Some key data about the actual uptake of the new provisions were presented in section 6. As previously explained, the majority of Member States transposed provisions on the VEAT notice and, based on the information available in the OJEU/TED, the use of this notice remains relatively stable since 2010 with around nine to ten thousands notices of this kind published every year (see: Figure 3 above). Referring to the frequency of remedy decisions, the Study indicates that there were around 50 000 first instance decisions across Member States during the period 2009-2012, with more than 20 000 coming from Sweden (11 144) and Poland (10 570). While no other Member States approach the numbers of these two countries, Croatia (6 939) and Bulgaria (4 411) also have a considerable number of decisions (see tables 1 and 2 below). MS 2009 2010 2011 2012 Total AT 253 204 241 234 932 BE 138 160 192 221 711 BG 1 224 1 072 1 146 969 4 411 CY 111 130 73 66 380 CZ 508 511 710 1 049 2 778 DE 1 275 1 065 989 893 4 222 DK 75 99 201 205 580 EE 193 208 224 254 879 EL - ~207 ~207 ~207 ~621 ES - ~441 ~441 ~441 ~1 323 FI 610 587 569 425 2 191 FR 6 16 18 40 HR 1 374 1 810 1 888 1 867 6 939 HU 598 673 688 460 2 419 IE 1 1 11 8 21 IT 69 91 180 0 340 LT 235 413 409 353 1 410 LU 18 8 10 3 39 LV 901 835 1 019 1 020 3 775 MT 5 83 152 240 NL 254 279 271 307 1 111 PL 1 985 2 823 2 820 2 942 10 570 PT 16 18 30 22 86 RO 225 401 619 427 1 672 SE 1 990 3 156 2 960 3 038 11 144 SI 392 419 537 516 1 864 SK 189 284 314 472 1 259 UK 5 13 16 13 47 Total 11 265 13 461 14 328 14 067 55 064 Review of case-law.

Number of decisions only for Member States where information was available. ~ indicates approximate figure. MS 2012 2013 2014 AT 281 229 348 DE 893 cases (332 decisions) 817 cases (284 decisions) 751 cases (297 decisions) EE 272 cases (48 decisions) 287 cases (39 decisions) 331 cases (65 decisions) FI 425 450-500 611 FR 6 042 HR 1 729 2 135 1 315 HU 695 572 986 IT 3 281 (data for first and second instance) 3 165 (data for first and second instance) 3 518 (data for first and second instance) LT Information for 2012-2014: 990 cases LV 614 567 550 NL 115 No data available 115 PL 2 873 3 055 2 835 SE 3 265 3 201 3 508 SI 516 545 354 SK 484 411 403 UK No data available No data available No data available Source: information provided by Member States (those not included in the table did not provide data). During the same period, there were also 10 103 second instance decisions made (for Member States where information was available). Out of the Member States with available information, Romania and Sweden had the highest numbers (2 231 and 2 386, respectively). For details see Annex 12. Information on the number of third instance decisions was available for only three Member States (Estonia, Lithuania and Sweden). Out of the total 800 decisions, 686 came from Sweden with Estonia and Lithuania having significantly fewer cases. For details see Annex 13. The Study points to the fact that the most frequently type of remedy sought is set aside decision, followed at a distance by interim measures and the removal of discriminatory specifications. In the second instance review of the sample, a set aside decision is the most used appeal by both applicants and contracting authorities, followed by discriminatory specifications. A similar pattern is observed for third instance decisions. For details see Annex 14.



7.1.2.Effectiveness in meeting the objectives Evaluation questions to be answered: Have the Remedies Directives been effective in meeting, or moving towards, the defined objectives? To what extent do they contribute to transparency, fairness and openness of the market? Questions concerning the effectiveness of the Remedies Directives were asked to the stakeholders in the context of the Study via two surveys that gathered 616 responses from suppliers and 832 from contracting authorities, as well as further 112 responses from legal practitioners. Their results reveal a general agreement with regard to the beneficial impact of the Remedies Directives on the way public procurement procedures are implemented. In the context of a Commission's public consultation, stakeholders were also asked whether the Remedies Directives helped the public procurement process to become more transparent, fairer, open, accessible and more compelling for compliance. The majority of respondents agreed that the Remedies Directives have (fully or partially) improved the transparency of the public procurement process (81 %) and helped to make the award procedure more open and accessible (78 %) and fairer (80 %). This is presented in Table 3 to Table 5 below. Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs

Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs The respondents also agreed that the Remedies Directives helped the public procurement process to become more compelling for contracting authorities to comply with the Procurement Directives (82 % agreed or agreed partially). Similar patterns emerge from the survey that was carried out for the purposes of the Study and where a general appreciation of the rules on remedies prevailed among the two main groups of respondents (i.e. contracting authorities and economic operators, Figure 4 ). In particular, about 71 % of contracting authorities in this survey took the position that the Remedies Directives were effective in achieving its objectives. Over 60 % of public respondents ‘agreed’ or ‘strongly agreed’ that the rules on remedies have helped to improve the fairness of award procedures. As much as three quarters of the contracting authorities responding to the survey were positive about the impact of the rules on remedies on transparency in public procurement. The aspect of the Remedies Directives that was the least valued by the contracting authorities consulted in the survey concerned their impact on the openness of the award procedure — only a half of the participating contracting authorities (49 %) noticed an improvement in this respect. As far as the economic operators were concerned, their general appreciation of the Remedies Directives was also pronounced, however to a lesser extent. Roughly 50 % of suppliers ‘agreed’ or ‘strongly agreed’ that the rules on remedies are an effective way for reviewing and challenging the procurement decisions. Just over half of the respondents felt that the provisions of the remedies have helped the public procurement process to become more transparent. In terms of the fairness and openness of the market, only around respectively 38 % of suppliers ‘agreed’ and 35 % ‘strongly agreed’that the Remedies Directives have helped to improve these aspects of the market. In general, around 30 % of suppliers were neutral when replying to the questions posed. Source: Survey of suppliers and contracting authorities/entities by Europe Economics

Effective Transparent Fairer More Open Strongly agree 9 % 9 % 4 % 4 % Agree 74 % 74 % 58 % 58 % Do not know or Indifferent 11 % 8 % 26 % 25 % Disagree 6 % 9 % 12 % 13 % Strongly disagree 0 % 0 % 1 % 0 % Source: the Study, survey of legal practitioners by Europe Economics In particular, 83 % of the legal practitioners that participated in the survey in the context of the Study ‘agreed’ or ‘strongly agreed’ with the statements related to providing an effective way for the review and challenge of decisions and to improving the transparency of public procurement. 62 % also ‘agreed’ or ‘strongly agreed’ that the Remedies Directives have helped the public procurement process become fairer and more open. The legal practitioners’ survey also provided insight into views of the impact of the Remedies Directives on suppliers taking action against contracting authorities in the event of a suspected breach of procurement law. 7.1.3.Factors affecting the effectiveness a)The duration of the review procedures One of the major elements that may impact the effectiveness of the rules on remedies is the time it takes to obtain a decision. According to the Study, in some Member States there are no legislative provisions on the duration of the review procedures. Over half of Member States, however, specify a maximum duration for review proceedings, including of administrative and, also in some cases, judicial nature. The duration of review procedures carried out under the Remedies Directives were subject to scrutiny within the Study, covering the interim measures, pre-contractual remedies in the first, second and third instance. The length of the most frequently used review for pre-contractual remedies in the first instance is provided in Figure 5 . Note: AT system is entirely judicial as of 2014, but was non-judicial for the period of analysis 2009-2012. Statistics based on the following number of observations: AT: 62; BE: 118; BG: 118; CY: 119; CZ: 60; DE: 92; DK: 103; EE: 44; EL: 100; FI: 26; FR: 17; HU: 116; IE: 4; IT: 24; LT: 2; LU: 31; LV: 134; MT: 60; NL: 37; PL: 164; RO: 116; SE: 18; SI: 114; SK: 109; UK: 7. CZ — The total length is calculated by adding the duration of the initial application for review before the Office for the Protection of Competition plus the duration of appeal to the Head of the Office. ES — No data. PT — No data. Source: Review of case-law. Figure 6.7 of the Study, p. 88.

As the above Table from the Study shows, the length of first instance pre-contractual remedies varies significantly across Member States. Moreover the review lengths appear to be influenced by the type of first instance review body. A general trend shows that Member States with a first instance administrative review body have the shorter review lengths, while Member States where a judicial process need to be followed have the longest review lengths (Belgium, Greece, Ireland, Luxembourg, Finland and the UK). This confirms the general trend of effectiveness of the administrative review bodies over the judicial ones in first instance pre-contractual remedies (for more details, see point b) below). Source: The Study, review of case-law; Member States with only one observation are not shown. The lengths of the review proceedings to grant interim measures in first instance and to reach a decision on the merits of the case in the context of pre-contractual remedies in second and third instances, as identified by the Study, are provided in Annex 10. In general terms, it appears that the first instance (interim measures) is the shortest on average and the second and third instance reviews are the longest. As far as data from the Commission's public consultation are concerned, it appears that in first instance: (i) review procedures concerning interim measures (which in most cases are initiated before the award of the contract) most often take up to one month; (ii) review procedures for the setting aside of decisions (which are also in most cases initiated before the award of the contract) and those for ineffectiveness (which, in turn, are initiated after the award of the contract) most often take between one and three months; and (iii) review procedures for damages (which are also initiated after the award of the contract) most often take more than a year. For details see Annex 3 (summary of the replies to question 3). Member States that replied to the Commission’s questionnaire do not identify any examples of the remedy system causing delays in the award of public contracts or only exceptionally identify such delays. None of the Member States that replied to the questionnaire identified systematic abuses of appeals to the detriment of the timely functioning of their national system. However, 40 % of respondents replied that the remedy system in their Member State caused delays in the award of public contracts, 44.71 % replied that it happened only occasionally and 11.18 % replied ‘No’. For details see Annex 3 (a summary of replies to question 8). b)Administrative first instance review bodies v ordinary courts As already outlined in the previous section, the duration of review procedure often depends on whether the case is dealt by an administrative review body or an ordinary court. This has been confirmed by a large majority of stakeholders, who consider that the type of review body has an impact on time and/or standard for review (74.7 % of participants). In general terms, procedures before the ordinary courts take longer. Strict time limits to deal with a case can be imposed on administrative review bodies whereas they are not often imposed on courts. Administrative review bodies with specialised functions also focus on public procurement law and do not deal with other areas of law. This specialisation tends to result in higher standards of adjudication. For details see Annex 3 (a summary of replies to question 5). These findings are confirmed by the data gathered in the context of the Study which demonstrates that review before the ordinary courts most often takes longer. Based on data provided by some Member States, the average length of review procedures in Member States where ordinary courts adjudicate on public procurement matters in first instance is provided in Figure 7 below. Source: Targeted consultation with Member States; Directorate General for Internal Market, Industry, Entrepreneurship and SMEs

To compare, the average length of review procedures in some of the Member States where specialised administrative review bodies adjudicate is shown in Figure 8 (also based on data provided by the Member States). Source: Targeted consultation with Member States: Directorate General for Internal Market, Industry, Entrepreneurship and SMEs In general, the number of appeals to first instance decisions taken by administrative bodies is rather low. The success rate for appeals is also low, which can be interpreted as an indicator proving the seriousness of the work carried out in first instance by the administrative review bodies. For instance, in Poland the success rate of appeals in 2012 was 17 %; in 2013, 11 %; and in 2014, 12 %. In Hungary, in 2012, 71.4 % of decisions reviewed were upheld by courts, while only 0.7% of first instance decisions were altered; in 2013, 73 % of claims for appeal were rejected and only 4.7 % of first-instance decisions were altered; in 2014, 73.7 % of the claims for appeal were rejected and only 6.5 % of first-instance decisions were altered. c)Costs of the proceedings Another essential aspect of remedial action is the cost of the proceedings (i.e. application fees and legal advocacy costs) taking into account that costs may be covered by the financial compensation awarded in a very limited number of some specific types of review (i.e. damages). The fee for applying for a review differs across Member States. In some countries the application fee for a review procedure is a fixed flat rate, irrespective of the characteristics of the contract. In others, the costs are determined by a scale criteria or by a value-range that depends on the size or the type of contract (for works, supply or services). Some Member States have a percentage-based fee which is capped at a maximum value. The differences in fee levels and structures is driven by a range of factors, such as the level of national procedural autonomy, different systems and procedures or the existence of administrative review bodies. A summary of the costs in the different Member States as identified in the Study is shown in Annex 11. The wide disparities across counties are also clearly visible in Figure 9 below. For each Member State the figure presents the levels of fees (marked on the x-axis) for three exemplary contract values: EUR 250 000, EUR 1 million and EUR 10 million. Source: The Study, research by network of legal experts Specific questions on litigation costs, including fees, were asked in the Commission's public consultation (questions 16 to 19 of the questionnaire). 37.65 % of respondents consider the level of fees as ‘dissuasive’, while 50.59 % do not consider them as such. For example, many participants from the UK indicated that the fee of up to £10 000 for commencement of proceedings is clearly dissuasive. However, in some Member States, access to review is free (e.g. in Sweden, Latvia, France and Spain there is no fee to submit a complaint in first instance). Member States that replied to the Commission's questionnaire recognise that fees are a factor to be taken into account by potential plaintiffs but they also help to ensure that only well-founded cases are brought for review. In general, Member States do not consider that the fees they impose have a dissuasive effect on economic operators to file complaints. Some Member States are in the process of reforms to lower the amount of fees, whereas others consider imposing higher fees in the future. The UK considers that minor breaches of public procurement rules are effectively addressed via means such as their ‘Mystery Shopper’ scheme. This is a free option offered to economic operators whereby the Crown Commercial Service carries out an investigation with the contracting authority and makes recommendations to resolve the matter and/or improve best practice for the future. Several respondents to the Commission's public consultation – members of first instance specialised administrative review bodies and some Member States – considered that it would be useful to have further legal guidance concerning the fees in the area of remedies in public procurement. Finally, a large majority of respondents considered also that costs of legal advice and representation have an impact on access to justice. Even if it is not always mandatory, in particular in first instance, legal advice seems to be sought in most cases due to the complexity of public procurement law. For details see Annex 3 (a summary of replies to question 19). d)Equal balance towards stakeholders The effectiveness of the Remedies Directives can be also evaluated by the extent to which it creates a system of checks and balances that makes them evenly equilibrated towards all stakeholders.

Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs As shown in Table 7 above, 57.06 % of participants to the Commission's public consultation considered that the Remedies Directive evenly balance the interest of economic operators in ensuring the effectiveness of public procurement law and the interest of contracting authorities in limiting frivolous litigation; 23.53 % indicated that the balance is too much on the interest of economic operators; and 15.88 % pointed out that the balance is too much on the interest of contracting authorities/entities. These results confirm that the Remedies Directives are generally well balanced in addressing the interests of all parties concerned. Based on this, it is plausible to conclude that the Remedies Directives have established conditions for the remedies system to work effectively. e)The clarity of the Remedies Directives As explained above, the Remedies Directives ensure only the minimum harmonisation which is necessary to guarantee the private enforcement of the Procurement Directives. Moreover, as a result of the principle of national procedural autonomy, the Remedies Directives are not as prescriptive as the substantive Procurement Directives. As a consequence, the provisions of the Remedies Directives are formulated in a manner to cover the situation of Member States with very different traditions in terms of administrative and procedural law. In the context of the Commission’s public consultation, several stakeholders underlined that some provisions of the Remedies Directives could be more precise. In particular, more clarity would be welcome in a number of areas related to institutional aspects (for example, professional standards for members of an administrative review body), procedural aspects (for example, criteria for lifting the automatic suspension, for granting interim measures and to award damages) and the interplay between the Remedies Directives and the new Public Procurement Directives (for example, how the Remedies Directives apply to the modification and termination of public contracts and concessions and the so-called ‘light regime’). f)National implementing measures and national approaches to enforcement Contributions received during the Commission's public consultation also identified problems that persist at national level and whose origin may not be found in the implementation of the provisions of the Remedies Directives at national level. Various stakeholders confirmed that some problems identified are rooted either in national legislation beyond the Remedies Directives or in national practices rather than stem from the Remedies Directives. One example of this is time-limits for seeking review that are significantly longer than those laid down in the Remedies Directives, which in some cases may create undue delays to the detriment of contracting authorities and successful tenderers. Other examples included in particular: (i) a high number of complaints lodged due to the lack of court fees, (ii) prohibitive court fees and cost of legal representation, (iii) too lengthy review procedures that result from an insufficient allocation of human resources by Member States to allow the proper functioning of the review system, (iv) the instances of non-enforceability of the review decisions, (v) difficulties in ensuring consistency in the case-law of first instance review bodies, (vi) the absence of effective remedies in procedures below the EU thresholds having a cross-border interest and (vii) the application of restrictive conditions to grant interim measures. For more details see Annex 3 (replies to question 20). g)Data gathering Data gathering related to national review procedures does not affect the effectiveness of the Remedies Directives themselves. However, it prevents assessing the performance, including the effectiveness, of the Directives. Indeed, data is essential to design consistent national policies in the field of procurement review and for example to: -identify the resources needed or the abusive complaints; -analyse the consistency of decisions based on effective searching tools; and -enable the identification of contracting authorities/entities against which successful complaints are lodged most often and of the aspects of procurement procedures which are appealed against successfully. During the assessment of the functioning of the Remedies Directives, it became apparent that data on review procedures is often not readily available or even not available at all. The difficulty to collect data related to review in the field of procurement (and to do so in a comparable manner) first became clear during the preparation of the Study by the contractor and subsequently in the Commission's consultation of Member States. 7.1.4.Deterrent effects of the Remedies Directives As mentioned previously, when evaluating the effectiveness of the Remedies Directives two different aspects need to be considered in parallel: (i) the direct impacts of its implementation and usage; and (ii) the indirect effects for the prevention of illegal practices in public procurement. The first type of impacts has been addressed in the preceding sections of this staff working document by discussing the implementation and the practical use of the Remedies Directives across Member States. As far as the second type of effects is concerned, it occurs when the Directives act as a deterrent to breaching EU public procurement laws because contracting authorities perceive that there is reasonable risk of being challenged. Hence the Remedies Directives serve to avoid illicit practices. The assessment of the extent to which the provisions in the Remedies Directives are acting as a deterrent to non-compliant behaviour of contracting authorities was one of the tasks for the Study. The consultants approached it by testing a hypothesis that past complaints and their associated costs incentivise contracting authorities to improve their behaviour in a manner that results in a decreased probability of having a complaint lodged against them. Using a sample of complaints and tender notices in OJEU/TED for four Member States (the Czech Republic, Denmark, Slovenia and the Slovak Republic), the Study found that past complaints had a statistically significant negative effect (of a small magnitude) on the probability of having a complaint lodged in the Czech Republic. This can be also linked to reputational effects of complaints; many complaints against one contracting authority indicate potential problems of compliance and may push that contracting authority to improve its procurement practices. This effect, although only observed for one Member State in the limited sample, pointed to the deterrent effect of the Remedies Directive in the particular context defined in the hypothesis.

With regard to the corrective mechanism described in section 3.1 of this document, the Commission has only exceptionally used it mainly due to its time constraints (the Commission’s formal decision need to be adopted and notified before the conclusion of the contract) and the strengthening of the remedies system by Directive 2007/66/EC. However, the possibility of using the corrective mechanism gives leverage to the Commission during investigations carried out during the award procedure and therefore may deter the contracting authority or entity in question from concluding the contract and thus consummating the alleged breach. The measurement of the effectiveness of the remedies system in this aspect is however very difficult as it consists of preventive impacts: i.e. the mere existence of the Remedies Directives avoids breaches of EU public procurement law before they occur. The practical effect of the deterrence role of the Remedies Directives is that fewer illicit practices can be observed and hence fewer review decisions are requested. However, the importance of the absence of complaints (i.e. the number of complaints that would have been lodged in the absence of the Remedies Directives) cannot be reasonably estimated. Despite that lack of quantification, the broadly understood deterrent effects of the Remedies Directives can be indirectly inferred from: (i) the overall uptake of the rules; and (ii) the generally positive perceptions on its impacts. 7.1.5.Conclusions — effectiveness: The Remedies Directives have generally met their objectives of: increasing the guarantees of transparency and non-discrimination; allowing effective and rapid action to be taken when there is an alleged breach of the Procurement Directives; and providing economic operators with the assurance that all tender applications will be treated equally. The available data on the actual usage of the provisions added further evidence on the effectiveness of the Directive. In general, the remedies provided in the Remedies Directives were frequently used in most of Member States. There were around 50 000 first instance decisions across Member States during 2009-2012. The most frequently type of remedy sought is set aside decision, followed at distance by interim measures and the removal of discriminatory specifications. As far as the opinions of the stakeholders were concerned, a clear majority of respondents to the public consultation carried out by the Commission departments considered that the Remedies Directives have had a positive effect on the public procurement process. It is considered to be more transparent (80.59%), fairer (79.42%), more open and accessible (77.65%) and it provides greater incentive to comply with substantive public procurement rules (81.77%). As confirmed by virtual consensus among all the interested parties, Directive 2007/66/EC substantially increased the effectiveness of pre-contractual remedies by introducing a minimum standstill period between the notification of an award decision and the signing of the contract. Some national systems require that legal protection in public procurement procedures is provided at first instance by administrative review bodies rather than ordinary