Keywords

Summary



Keywords

1 Approximation of laws - Public procurement in the water, energy, transport and telecommunications sectors - Application of the Community rules to public procurement procedures - Directive 92/13 - Judicial remedies at national level - Obligation for Member States to confer appropriate jurisdiction on review bodies - Where power is conferred on the courts to impose fines - Obligation fulfilled

(Council Directive 92/13, Arts 2(1)(c) and 5)

2 Approximation of laws - Public procurement in the water, energy, transport and telecommunications sectors - Application of the Community rules to public procurement procedures - Directive 92/13 - Attestation system and conciliation procedure - Obligation for the Member States to adopt implementing measures

(Council Directive 92/13, Arts 3 to 7 and 9 to 11)

Summary

1 Chapter 1 (Articles 1 and 2) of Directive 92/13 relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors provides that the Member States are to take the measures necessary to ensure that appropriate judicial remedies are made available to prospective suppliers and operators in the event of infringement by the contracting entities of the rules applicable to contract award procedures. It also authorises the Member States to choose between various options as regards the powers to be exercised by the courts.

These requirements are satisfied where a Member State chooses the option provided for in Article 2(1)(c) of the Directive - the introduction of measures permitting, by means of appropriate procedures, the making of an order for the payment of a particular sum in cases where the infringement has not been corrected or prevented - and provides that a court has the power to impose a fine, the level of which it is to fix according to its assessment of the circumstances of each particular case. Such a fine meets the requirements set out in Article 2(5).

2 Chapter 2 (Articles 3 to 7) of Directive 92/13 relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors provides for an attestation system enabling the contracting entities to obtain an attestation that they have correctly applied the rules governing the award of contracts. Chapter 4 (Articles 9 to 11) of the Directive provides for a conciliation mechanism at Community level for the amicable settlement of any differences arising between the undertakings involved and the contracting entities.

The fact that the Directive offers the entities falling within its scope the possibility of recourse to an attestation system in no way signifies that the transposition of that system into national law is optional. The relevant provisions of the Directive must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty. Transposition into national law is also necessary in order to ensure that persons having an interest know of the existence of such a procedure and may have recourse to it.