No C 15/8 Official Journal of the European Communities 19. 1. 89 
Amended proposal for a Council Directive on the coordination of 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(88) 733 final — SYN 89 
(Submitted by the Commission to the Council under Article 149 (3) of the EEC Treaty on 
25 November 1988) 
(89/C 15/07) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 100a 
thereof, 
Having regard to the proposal from the Commission, 
In cooperation with the European Parliament, 
Having regard to the opinion of the Economic and 
Social Committee, 
Whereas the Community rules on public procurement, in 
particular the Council Directives on public supply 
contracts and those on public works contracts do not 
include any specific provisions ensuring their effective 
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; 
Whereas the absence or inadequacy of effective adminis­
trative 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; 
(') OJ No C 230, 28. 8. 1987, p. 6. Whereas, since procedures for the award of public 
contracts are of such short duration, the competent 
administrative or judicial body must be authorized to 
take interim 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 that the 
competent body respects the precedence of Community 
law and present to it the purpose of the 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 undertakings are sometimes unwilling to take 
action against contracting authorities for fear of damaging 
their relations with those authorities, and whereas this 
means in particular that the number of interim measures 
requested by way of summary procedure by undertakings 
with a view to the suspension of contract award procedures, 
even where these are manifestly irregular, is likely to 
remain small; 
Whereas, accordingly, the Commission, in its capacity as 
guardian of the Community rules, must be free to suspend 
a contract award procedure in clearly defined cases of 
infringement for a limited period in order to prevent any 
irreparable harm that might result if the contract were 
awarded unlawfully; 
Whereas the Treaty makes provision for an appeal to the 
Court of Justice of the European Communities coupled, 
where necessary, with an application to suspend execution, 
against an illegal decision by the Commission to suspend a 
contract award procedure, 
HAS ADOPTED THIS DIRECTIVE: 
Article 1 
Member States shall take the measures necessary to ensure, 
at all stages of the procedure for the award of public 
contracts, that any contractor or supplier taking part in a 
procedure for the award of a public supply or public works 
19. 1. 89 Official Journal of the European Communities No C 15/9 
contract, or any third person entitled to tender for such an 
award, can seek effective and rapid administrative and 
judicial remedies in respect of any decision by a contracting 
authority, as defined by the Community rules on public 
procurement, which infringes Community or national rules 
on public procurement. 
Article 2 
1. The measures provided for in paragraph 1 shall confer 
the power enabling the competent administrative or judicial 
body to: 
(a) take, at the earliest opportunity and by way of interlo­
cutory procedure, interim measures, including measures 
to suspend the procedure for the award of the public 
contract concerned, or the implementation of the 
decision taken by the contracting authority; 
(b) 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; 
(c) set aside decisions taken unlawfully and award 
damages to the injured undertaking, without prejudice 
to the effect on the contract concerned which may arise, 
under national law, from setting aside a decision. 
2. For the purposes of Article 1 and paragraph 1 of this 
Article, the competent administrative body shall be 
empowered, where it decides on complaints, to monitor and 
enforce observance of its decisions effectively. 
3. Where the measures provided for in paragraph 1 (a) 
are taken by an administrative body, the reasons for its 
decisions shall always be given. 
Furthermore, in this case, provision must be made for 
procedures whereby any illegal measure taken by the 
competent administrative body or any defect in the exercise 
of the powers conferred on it can be the subject of judicial 
review. 
Article 3 
Member States shall ensure that the competent adminis­
trative and judicial bodies allow the Commission to ensure 
respect for the precedence of Community law in the course 
of the administrative or judicial procedure referred to in 
Article 2. Article 4 
The Commission may, in case of urgency, suspend a 
contract award procedure in accordance with Article 5 for a 
period that may not exceed three months. 
Article 5 
1. The decision to suspend a contract award procedure 
may be taken at any stage of the procedure before the 
award is made where the Commission establishes that: 
(a) a tender notice has not been published in the Official 
Journal of the European Communities; 
(b) improper recourse has been had to a negotiated 
procedure without prior publication of a tender notice; 
(c) a tender notice (published nationally and 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 partici­
pation 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. 
The Commission shall ask the contracting authority to 
rectify the infringement as soon as possible and to notify the 
Commission accordingly. When the infringement has been 
rectified within the period provided for in Article 4, the 
award procedure shall be resumed. 
Without prejudice to Article 173 of the Treaty, the 
Commission shall reconsider its decision if requested to do 
so by the Member State to which the contracting authority 
is answerable. 
Article 6 
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 7 
This Directive is addressed to the Member States.