No C 230/6 Official Journal of the European Communities 28. 8. 87 
Proposal for a Council Directive coordinating the laws, regulations and administrative 
provisions relating to the application of Community rules on procedures for the award of public 
supply and public works contracts 
COM(87) 134 final 
(Submitted by the Commission to the Council on 1 July 1987) 
(87/C 230/05) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 100 A 
thereof, 
Having regard to the proposal from the Commission, 
Having regard to the opinion of the Economic and 
Social Committee, 
Having regard to the conclusions of the Brussels and 
Milan European Councils of 29 and 30 March and 28 
and 29 June 1985 concerning the internal market, 
Having regard to the White Paper on completing the 
internal market, and in particular the need for more 
effective monitoring of compliance with Community 
provisions in the field of public procurement, 
Having regard to the Commission communication of 
19 June 1986 on public procurement in the Community 
(COM(86) 375 final), 
Whereas the Community rules on public procurement, 
and in particular Directives 71/305/EEC and 
77/62/EEC ('), do not include any specific provisions 
permitting effective monitoring of their application; 
Whereas the arrangements that exist at both national and 
Community levels for monitoring their application are 
not adequate to ensure strict compliance with the 
relevant Community provisions before violation of the 
latter becomes irreparable; 
Whereas the opening up of public procurement to 
Community competition necessitates a substantial 
increase in the guarantees of transparency and non­
discrimination and whereas, for it to have tangible 
effects, any offences committed during contract award 
procedures must be effectively and rapidly censured; 
(') Directive 71/305/EEC concerning the coordination of pro­
cedures for the award of public works contracts (OJ No 
L 185, 16. 8. 1971); 
Directive 77/62/EEC coordinating procedures for the 
award of public supply contracts (OJ No L 13, 15. 1. 1977), 
as amended by Directive 80/767/EEC (OJ No L 215, 
18. 8. 1980). Whereas the absence or inadequacy of effective 
administrative or judicial remedies in a number of 
Member States deters Community undertakings from 
submitting tenders in the Member State in which the 
contracting authority is established and whereas, 
therefore, the Member States concerned must put an end 
to this state of affairs by introducing proper remedies; 
Whereas, since procedures for the award of public 
contracts are of such short duration, the competent 
administrative body or court must be authorized to take 
precautionary measures aimed, among other things, at 
suspending the contract award procedure or the 
implementation of the decision taken by the contracting 
authority; 
Whereas the Commission must be able, in the course of 
an administrative or judicial procedure, to ensure the 
precedence of Community public interest and the correct 
application of Community rules; 
Whereas the specific nature of infringements of 
Community rules on public procurement, which stems 
from the fact that procedures for the award of public 
contracts are of such short duration, means that such 
infringements need to be dealt with urgently; 
Whereas, accordingly, the Commission must be free to 
suspend a contract award procedure for a limited period 
in order to prevent any irreparable harm that might 
result if the contract were awarded unlawfully, 
HAS ADOPTED THIS DIRECTIVE: 
Article 1 
1. Member States shall take the measures necessary to 
ensure, at all stages of the contract award procedure, 
effective administrative and/or judicial remedies for: 
— setting aside decisions taken by the contracting auth­
orities as defined in the Community rules on public 
procurement and which infringe, with respect to any 
contractor or supplier taking part in a procedure for 
the award of a public supply or public works 
contract, the Community and/or national rules on 
public procurement, 
— idemnifying the injured contractor or supplier. 
28.8.87 Official Journal of the European Communities No C 230/7 
2. The measures provided for in paragraph 1 shall 
authorize the competent administrative body or court to 
take at the earliest opportunity precautionary measures, 
including decisions to suspend the procedure for the 
award of the public contract concerned or the 
implementation of the decision taken by the contracting 
authority. 
3. The competent administrative body or court may 
take, among other things, the following decisions: 
— to order the removal, subject to the imposition of 
penalty payments, of discriminatory technical, 
economic or financial specifications in the invitation 
to tender, the contract documents or in any other 
such document, 
— to set aside decisions taken unlawfully and to award 
damages to the injured undertaking for the costs of 
unnecessary studies, foregone profits or lost oppor­
tunities. 
Article 2 
Member States shall guarantee the possibility for the 
Commission to intervene in the administrative or judicial 
procedure referred to in Article 1 in order to ensure the 
precedence of Community public interest and compliance 
with the Community rules applicable to the award of 
public supply and public works contracts. 
Article 3 
The Commission may, in case of urgency, suspend a 
contract award procedure for a period that may not 
exceed three months. Article 4 
1. A decision to suspend a contract award procedure 
may be taken at any stage of the procedure where it has 
been established that a clear and manifest infringement 
has been committed, and in particular where: 
(a) the invitation to tender has not been published in the 
Official Journal of the European Communities; 
(b) improper recourse has been had to an exceptional 
award procedure; 
(c) the tender notice (published in the local press or in 
the Official Journal of the European Communities) 
and any other document laying down the contract 
award conditions contains administrative, financial, 
economic or technical clauses that are incompatible 
with Community law; 
(d) a contractor or supplier has been excluded from 
participation in the tendering procedure in violation 
of the Community rules. 
2. The decision to suspend the procedure shall be 
notified to the contracting authority and to the Member 
State to which the latter is answerable. The Commission 
may publish its decision in the Official Journal of the 
European Communities. 
Article 5 
Member States shall bring into force, not later than ..., 
the measures necessary to comply with this Directive. 
They shall communicate to the Commission the texts of 
the main national laws, regulations and administrative 
provisions which they adopt in implementation of this 
Directive. 
Article 6 
This Directive is addressed to the Member States.