Proposal for a Directive of the European Parliament and of the Council amending Council Directives 89/665/EEC and 92/13/EEC CEE with regard to improving the effectiveness of review procedures concerning the award of public contracts {SEC(2006)557}
Date: 2006-05-04
Institutions: European Commission
Subjects: action brought before an administrative court, approximation of laws, award of contract, infringement of EU law, public contract

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.5.2006 
COM(2006) 195 final 

2006/0066 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Directives 89/665/EEC and 92/13/EEC CEE with regard to improving 
the effectiveness of review procedures concerning the award of public contracts 

(presented by the Commission) 

{SEC(2006)557} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

Directives 89/665 and 92/13 coordinate national provisions relating to the application 
of  review  procedures  in  the  event  of  infringement  of  the  Public  Procurement 
Directives. 

However, the lack of coordinated rules on the time limits applicable to pre-contractual 
reviews has resulted in most Member States retaining national arrangements which do 
not  allow  the  signing  of  disputed  contracts  to  be  prevented  in  time.  But  the  result  of 
signing the contract in question is almost always to make irreversible the effects of the 
disputed  award  decision.  This  situation  is  all  the  more  worrying  when  it  involves 
preventing contracts which have been directly and illegally awarded, i.e. those which 
have  been  illegally  concluded  with  no  prior  publication  of  a  contract  notice  and  no 
competitive tendering procedure. 

The  proposal  for  a  Directive  amending  Directives  89/665  and  92/13  (the  “Remedies 
Directives”) seeks to give greater encouragement to Community enterprises to tender 
in any Member State of the Union by providing them with the certainty that they can, if 
need be, effectively seek effective review if their interests seem to have been adversely 
affected in procedures for awarding contracts. The increasingly effective nature of pre-
contractual  reviews  will  prompt  awarding  authorities  to  adopt  better  publication  and 
competitive tendering procedures for the benefit of all involved. 

•  General context 

The Remedies Directives make a distinction between pre-contractual reviews seeking 
primarily  to  correct  in  time  infringements  of  Community  law  on  public  procurement 
and post-contractual reviews which are generally limited to awarding damages. 

Given that there are no specific time limits and provisions allowing the suspension in 
time  of  the  signature  of  a  contract  the  award  of  which  is  disputed,  the  relative 
effectiveness of pre-contractual reviews varies considerably from one Member State to 
another.  Furthermore,  in  the  case  of  an  illegal  direct  award  of  contract  the  injured 
enterprises can in fact only seek review for damages, but such a review does not allow 
an  illegally  awarded  contract  to  be  opened  again  for  competition.  In  addition,  such 
reviews  for  damages  have  little  deterrent  effect  on  awarding  authorities,  especially 
because enterprises who feel that their interests have been harmed must prove that they 
had  serious  chances  of  being  awarded  the  contract.  Thus,  even  though  the  Court  of 
Justice  has  called  illegal  direct  awards  of  contracts  “the  most  serious  breach  of 
Community  law  in  the  field  of  public  procurement”  (Stadt  Halle,  case  C-26/03, 
paragraph 37), the current Remedies Directives do not make it possible to prevent or 
correct in an effective way the consequences of such illegal action. 

In  the  absence  of  legislative  action  at  Community  level,  the  very  different  situations 
among  the  Member  States  with  regard  to  the  effectiveness  of  review  procedures 
available  to  enterprises  would  persist  or  even  be  aggravated.  Situations  of  legal 

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uncertainty and serious or repeated infringements of the public procurement Directives 
would continue. 

•  Existing provisions in the area of the proposal 

This proposal for a Directive seeks to amend the two Remedies Directives in the area 
of  public  procurement:  i)  Directive  89/665/EEC  which  applies,  in  principle,  to 
contracts  for  works,  services  and  supplies  awarded  by  contracting  authorities,  now 
coming  under  Directive  2004/18/EC;  ii)  Directive  92/13/EEC  which  applies  to 
contracts awarded by contracting entities operating in the water, energy, transport and 
postal services sectors (remedies in the so-called “special” sectors). 

The proposed amendments introduce coordinated rules intended to clarify and improve 
the  effectiveness  of  the  current  provisions  on  pre-contractual  reviews  brought  in  the 
framework  of  the  formal  procedures  for  awarding  contracts  or  in  the  case  of  illegal 
direct  awards  of  contracts.  The  other  proposed  amendments  are  intended,  on  the  one 
hand, to refocus the corrective mechanism which may be applied by the Commission to 
cases  of  serious  infringement  and,  on  the  other  hand,  to  repeal  two  mechanisms 
(attestation  of  contracting  entities  and  conciliation)  which  apply  solely  to  the  special 
sectors  and  which  have  not  prompted  the  interest  of  the  contracting  entities  or  the 
enterprises concerned. 

•  Consistency with the other policies and objectives of the Union 

The objective in amending the “Remedies” Directives is, in particular, to improve the 
effectiveness of appeals by economic operators in connection with public procurement 
procedures,  which  must  comply  not  only  with  the  specific  provisions  of  Directives 
2004/17  and  2004/18  but  also  with  the  principles  of  the  EC  Treaty,  such  as  the 
principles of the free movement of goods, the freedom to provide services, the freedom 
of  establishment  and  the  principles  derived  therefrom,  such  as  equality  of  treatment, 
mutual recognition, proportionality and transparency. In addition, this objective is fully 
in  line  with  the  objective  of  Article  47  of  the  Charter  of  Fundamental  Rights  of  the 
European  Union,  which  states  the  right  of  everyone  whose  rights  and  freedoms 
guaranteed  by  the  law  of  the  Union  are  violated  to  an  effective  remedy  before  an 
impartial  tribunal.  Lastly,  improving  the  effectiveness  of  national  review  procedures, 
especially those dealing with illegal direct awards of contracts, is also in line with the 
European Union’s overall policy against corruption (see Commission Communication 
of 28.5.2003, COM(2003) 317 final). 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods used, main sectors targeted and general profile of respondents 

The Member States were consulted in the Advisory Committee on Public Procurement. 

A  public  consultation,  open  to  economic  operators  and  their  representatives 
(professional  associations  and  lawyers)  was  organised  using  on-line  questionnaires 
(Interactive  Policy  Making),  which  provided  138  contributions.  In  addition,  five 

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European  and  national  professional  associations  voluntarily  offered  written 
contributions. 

Economic  operators  were  also  consulted  by  means  of  a  questionnaire  specifically 
addressed  to  a  representative  panel  of  European  enterprises  (European  Business  Test 
Panel), which provided 543 contributions. 

Non-governmental  experts,  including  representatives  of  economic  operators  as  well, 
were consulted in the Advisory Committee on the Opening-up of Public Procurement. 

Awarding  authorities  were  consulted  by  means  of  an  on-line  questionnaire,  which 
resulted in 16 contributions. 

Summary of responses and how they have been taken into account 

The consultations of the economic operators and their representatives indicate that the 
operation of national review procedures in connection with the existing Directives does 
not  always  make  it  possible  to  remedy  effectively  non-compliance  with  Community 
rules on public procurement. There is virtual consensus among the interested parties on 
the  need  to  improve  the  effectiveness  of  pre-contractual  reviews  by  providing  for  a 
standstill  period between the notification of an award decision and the signing of the 
contract,  as  well  as  supplementary  rules  intended  to  ensure  effectiveness.  Although 
there  is  virtual  consensus  as  well  on  the  seriousness  of  the  illegal  practices  of  direct 
awards of contracts by certain awarding authorities, opinions differ among the Member 
States  and  economic  operators  on  the  solutions  to  be  introduced.  Only  a  minority  of 
Member  States  and  economic  operators  support  proposals  to  impose  pecuniary 
penalties  or  prior  administrative  checks  on  awarding  authorities  or  a  system  of 
notification  by  independent  bodies  which  would  receive  complaints  from  enterprises 
whose  interests  had  been  harmed.  The  requirement  to  observe  a  standstill  period, 
together  with  the  requirement  of  transparency  prior  to  signing  a  contract  directly 
awarded, is a proposal which is generally more acceptable to the interested parties. 

A  consultation  was  organised  using  the  Internet  from  19/03/2004  to  07/05/2004.  The 
Commission received 543 replies. The results of the consultation are available on: 

http://europa.eu.int/comm/internal_market/publicprocurement/remedies 

•  Collection and use of expertise 

Use of external expertise was not necessary. 

•  Impact assessment 

Three  major  options  are  available  in  connection  with  the  revision  of  the  “Remedies” 
Directives,  with  two  of  these  options  subject  to  a  variant  depending  on  whether  the 
Directives are amended or a communication is adopted: 

(1)  Retaining  the  Directives  as  they  are:  this  option  would  involve  encouraging  the 
Commission to pursue infringement proceedings in order to deal with all the problems 
of  the  incompatibility  of  national  legislation  or  practice  in  this  area  with  the 
“Remedies” Directives. The differences which have been noted in the way in which the 

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Member States draw the operational conclusions from the principles deriving from the 
case  law  of  the  Court  would  persist,  and  the  problems  of  the  race  to  sign  contracts 
would  be  solved  only  in  part  and  the  pace  would  vary  greatly  depending  on  the 
Member  State,  thus  depriving  economic  operators  of  guarantees  with  regard  to  the 
effectiveness of the pre-contractual reviews applicable in the Member States ("no level 
playing field"). In the case of illegal direct awards, most Member States have no plans 
at  present  to  introduce  specific  review  mechanisms.  In  practice,  potential  tenderers 
would continue to be able to apply only for damages. Now, the difficulties inherent in 
this  type  of  procedure,  such  as  the  burden  of  proof  and  the  length  and  expense  of 
proceedings, give tenderers no encouragement to make use of it, since only rarely is a 
positive  result  the  outcome.  In  the  absence  of  a  coordinated  approach  allowing  the 
introduction  of  effective  remedies  against  this  illegal  practice,  there  would  be  no 
improvement to the transparency and competitive tendering of public procurement, and 
this would deprive European enterprises (including the most competitive among them) 
of the chance to bid for public contracts which are still directly and illegally awarded. 

(2) Introduction of a standstill period by means of an amendment to the Directives or a 
communication indicating the Member States’ obligations in this regard: although the 
case  law  of  the  Court  of  Justice  has  specified  the  requirement  to  provide  for  a 
reasonable standstill period, so that the tenderers who consider that their interests have 
been harmed can seek a remedy at a time when the infringements can still be corrected, 
there are still differences of approach from one Member State to another with regard to 
the  scope  and  exact  content  of  such  a  requirement.  Drawing  the  operational 
conclusions  from  such  a  requirement  in  a  Directive  makes  it  possible  to  deal  at  the 
same time with the problem of the race to sign contracts in formal tendering procedures 
and  the  problem  of  illegal  direct  awards,  by  improving  the  legal  certainty  of  the 
situations  in  question  and  providing  guarantees  for  an  effective  application  of  the 
mechanism. 

(3)  New  powers  granted  to  independent  bodies  by  means  of  an  amendment  to  the 
Directives  or  a  communication  encouraging  the  introduction  of  such  bodies:  the 
Member  States  would  appoint  independent  bodies  which  would  have  the  power  to 
notify  awarding  authorities  of  more  serious  breaches  of  Community  law  on  public 
procurement (more particularly, illegal direct awards) so that they would be prompted 
to correct the shortcomings themselves. This notification mechanism offers advantages 
for tenderers in terms of cost and anonymity. On the other hand, uncertainty about the 
administrative  costs  likely  to  be  generated  for  these  independent  bodies  to  function, 
together  with  the  negative  position  expressed  by  the  majority  of  the  Member  State 
delegations  in  the  Advisory  Committee  on  Public  Procurement,  prompted  the 
Commission to discard this solution in favour of introducing a standstill period. 

The Commission conducted an impact assessment under the Commission’s Legislative 
and Work Programme. The report may be found at:   
http://europa.eu.int/comm/internal_market/publicprocurement/remedies 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed measures 

When an awarding authority completes a formal procedure for awarding a contract in 

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accordance with the Directives on public procurement, it must in principle suspend the 
conclusion of the contract until the end of a minimum period of ten calendar days from 
the date on which the economic operators involved in the award procedure are given a 
reasoned notification of the award decision. 

When an awarding authority considers that it has the right to directly award a contract 
with a value above the thresholds fixed by the Directives on public procurement it must 
–  except  in  cases  of  extreme  urgency  –  suspend  the  conclusion  of  the  contract  for  a 
minimum  period  of  ten  calendar  days,  following  sufficient  publicity  in  the  form  of  a 
simplified award notice. 

If  a  contract  is  concluded  illegally  by  the  awarding  authority  during  the  standstill 
period, such an action is considered invalid. The consequences of such an illegal action 
on  the  effects  of  the  contract  are  drawn  by  the  competent  review  body,  although  the 
matter  must  be  referred  to  the  body  by  an  economic  operator  before  the  end  of  a 
limitation period of six months with effect from the effective date of conclusion. 

The  corrective  mechanism  is  focused  on  serious  infringements  and  the  unused 
attestation and conciliation mechanisms are repealed. 

•  Legal basis 

Article 95 of the EC Treaty. 

•  Subsidiarity principle 

The principle of subsidiarity applies insofar as the proposal does not concern an area in 
which the Community has exclusive competence. 

The  objectives  of  the  proposal  cannot  be sufficiently  achieved  by  the  Member  States 
for the following reasons. 

In spite of the developments in case law since 1999 and the resulting actions by certain 
Member  States,  especially  following  infringement  proceedings  by  the  Commission, 
there  are  still  significant  disparities  among  the  Member  States  in  terms  of  the 
effectiveness  of  reviews  in  the  area  of  public  procurement.  In  addition,  the  lack  of 
guarantee  of  effective  remedy  discourages  Community  enterprises  from  tendering 
outside  their  country  of  origin.  The  experience  of  recent  years  shows  that  this  legal 
uncertainty  will  not  be  removed  by  isolated  and  separate  action  by  some  Member 
States. 

The  objectives  of  the  proposal  can  be  better  achieved  by  Community  action  for  the 
following reasons. 

The shortcomings which it was possible to detect during the consultation process occur 
in  the  scope  of  the  two  Directives  adopted  in  1989  and  1992.  Improvements  to  and 
clarifications  of  the  existing  provisions  of  these  Directives  would  be  fully  effective 
only by means of an amending Directive. 

The Union is best capable of achieving the objective of improving review procedures 
in the area of public procurement covered by Directives 2004/17/EC and 2004/18/EC. 

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In fact, the preliminary consultations have shown that the degree of mobilisation is still 
very different from one Member State to another with regard to the need to strengthen 
provisions  which  can  ensure  effective  enforcement  of  the  Directives  on  public 
procurement. If there is no Community initiative in this area, the disparities among the 
Member  States  in  the  proper  application  of  Community  legislation  on  public 
procurement will persist. 

With regard to the problem of illegal direct awards of contracts, no effective solution to 
combat this illegal practice has yet been adopted by most Member States, even though 
the  vast  majority  acknowledge  the  reality  and  the  seriousness  of  the  problem.  As  for 
the  problem  of  the  race  to  sign  the  contract  in  the  case  of  formal  award  procedures, 
there is an emerging consensus among the representatives of the Member States on the 
need  to  include  in  an  amending  Directive  a  standstill  period,  which  will  be  clearly 
defined  with  regard  to  its  scope  and  arrangements.  In  addition,  legislative  action  at 
Community  level  proves  necessary  with  a  view  to  establishing  a  clear  system  of 
effective, proportionate and deterrent sanctions against the most serious infringements 
of Community law on public procurement. 

The  Member  States  will  retain  their  power  to  appoint  the  bodies  responsible  for  the 
review  procedures  and  to  maintain  the  national  procedural  rules  applicable  to  such 
reviews  (respect  for  the  Member  States’  procedural  autonomy).  The  proposal  for  a 
Directive  focuses  on  the  two  most  important  problems  which  are  common  to  all  the 
Member States. 

The proposal thus complies with the principle of subsidiarity. 

•  Proportionality principle 

The proposal complies with the principle of proportionality for the following reasons. 

The  proposal  for  a  Directive  is  limited  to  providing  some  improvements  or 
clarifications to existing provisions dealing with pre-contractual reviews and with those 
contracts  where  the  amounts  are  higher  than  the  thresholds  fixed  by  Directives 
2004/18/EC  and  2004/17/EC,  and  does  not  demand  any  changes  to  existing 
administrative  or  judicial  systems.  In  addition,  the  fact  that  there  is  provision  for 
subsequent  drafting  of  interpretative  documents  to  deal  with  other  problems  in 
connection  with  the  poor  operation  of  national  review  procedures  as  a  result  of 
incorrect  interpretation  of  existing  provisions  by  some  Member  States  indicates  the 
proportionate nature of the Commission’s initiative. 

The burden on public authorities is limited mainly to the marginal costs in connection 
with deferring the signing of a contract for ten calendar days as a rule, and to an initial 
increase in the number of reviews by a few percent in relation to the number of public 
contracts  published  at  Community  level.  For  society  in  general,  the  main  benefit  of 
better application of Community law on public procurement as a result of the deterrent 
effect  of  effective  reviews  would  be  a  reduction  in  public  expenditure  and  an 
improvement  in  the  quality  of  public  service,  with  this  overall  benefit  greatly 
exceeding  the  additional  costs  which  have  been  mentioned.  Since  there  is  no 
requirement  to  create  new  administrative  structures,  the  financial  and  administrative 
burden on the public authorities has also been kept to a minimum. 

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•  Choice of instruments 

Proposed instrument(s): Directive. 

Other instruments would not have been appropriate for the following reasons. 

The alternative to a Directive establishing the scope and the arrangement for applying a 
standstill period would have been the adoption of a document interpreting the case law 
of  the  Court.  However,  this  alternative  was  discarded  because  it  could  not  have 
guaranteed  the  application  in  every  Member  State  of  a  standstill  period  which  was 
clearly  defined  and  satisfactory  in  terms  of  the  various  situations  covered  by  the 
Directives  on  public  procurement.  In  general  terms,  the  differences  of  interpretation 
with  and  between  the  Member  States  on  the  scope  of  the  case  law  on  which  the 
requirement  to  observe  a  standstill  period  is  based,  as  well  as  arrangements  for 
applying  effective,  proportionate  and  deterrent  sanctions  in  the  event  of  infringement 
of  this  key  provision  for  the  effectiveness  of  pre-contractual  reviews,  would  not  be 
removed by the Commission’s adoption of an interpretative document. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the Community budget. 

5. 

ADDITIONAL INFORMATION 

•  Simplification 

The proposal simplifies the legislative framework. 

The  proposed  simplification  consists  of  repealing  the  attestation  and  conciliation 
mechanisms  which  are  applicable  in  the  special  sectors  (Directive  92/13/EEC)  and 
which have not been used. 

•  Review/revision/sunset clause 

The proposal includes a review clause. 

•  Correlation table 

The  Member  States  are  required  to  communicate  to  the  Commission  the  text  of 
national  provisions  transposing  the  Directive,  as  well  as  a  correlation  table  between 
those provisions and this Directive. 

•  European Economic Area 

The proposed act concerns an EEA matter and should therefore extend to the European 
Economic Area. 

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2006/0066 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Directives 89/665/EEC and 92/13/EEC CEE with regard to improving 
the effectiveness of review procedures concerning the award of public contracts 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION 

Having regard to the Treaty establishing the European Community, and in particular Article 
95 thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Economic and Social Committee 2, 

Having regard to the opinion of the Committee of the Regions3, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty4,  

Whereas: 

(1) 

Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, 
regulations  and  administrative  provisions  relating  to  the  application  of  review 
procedures  to  the  award  of  public  supply  and  public  works  contracts5  and  Council 
Directive  92/13/EEC  of  25  February  1992  coordinating  the  laws,  regulations  and 
administrative  provisions  relating  to  the  application  of  Community  rules  on  the 
procurement  procedures  of  entities  operating  in  the  water,  energy,  transport  and 
telecommunications  sectors6  concern  the  review  procedures  with  regard  to  contracts 
awarded  by  contracting  authorities  and  contracting  entities  respectively.  These 
Directives  are  intended  to  ensure  the  effective  applications  of  the  Directives 
concerning  award  procedures  which  were  replaced  by  Directive  2004/18/EC  of  the 
European  Parliament  and  of  the  Council  of  31  March  2004  on  the  coordination  of 
procedures for the award of public works contracts, public supply contracts and public 
service contracts7 and by Directive 2004/17/EC of the European Parliament and of the 

1 
2 
3 
4 
5 

6 
7 

OJ C of , p. . 
OJ C of , p. . 
OJ C of , p. . 
xxx 
OJ L 395 of 30.12.1989, p. 33. Directive amended by Directive 92/50/EEC (OJ L 209 of 24.7.1992, p. 
1). 
OJ L 76 of 23.3.1992, p. 14. Directive as last amended by the Act of Accession of 2003. 
OJ L 134 of 30.4. 2004, p. 114. Directive as last amended by Regulation 2083/2005/EC (OJ L 333 of 
20.12.2005, p. 28). 

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(2) 

(3) 

(4) 

(5) 

Council  of  31  March  2004  coordinating  the  procurement  procedures  of  entities 
operating in the water, energy, transport and postal services sectors8. 

Consultations of the interested parties and the case law of the Court of Justice of the 
European  Communities  have  revealed  a  certain  number  of  weaknesses  in  the  review 
mechanisms  in  the  Member  States.  Because  of  these  weaknesses  the  mechanisms 
referred to by Directives 89/665/EEC and 92/13/EEC do not always make it possible 
to  ensure  compliance  with  Community  provisions,  especially  at  a  time  when 
infringements can still be corrected. Consequently, the economic operators do not yet 
have  the  guarantees  of  transparency  and  non-discrimination  sought  by  these 
Directives.  In  these  circumstances,  the  Community  as  a  whole  cannot  fully  benefit 
from the positive effects of the modernisation and simplification of the Directives on 
public procurement, which were achieved by Directives 2004/18/EC and 2004/17/EC. 
Directives  89/665/EEC  and  92/13/EEC  should  thus  be  amended  by  adding  the 
essential clarifications which will allow the results intended by Community lawmakers 
to be attained. 

The  weaknesses  which  were  noted  include  in  particular  the  absence  of  a  period 
allowing  an  effective  review  between  the  decision  to  award  a  contract  and  the 
conclusion  of  the  contract  in  question,  which  sometimes  results  in  a  race  to  sign  the 
contract  by  the  awarding  authorities  who  are  keen  to  make  irreversible  the 
consequences of the disputed award decision. In order to remedy this weakness which 
is  a  serious  obstacle  to  effective  judicial  protection  for  the  candidates  or  tenderers 
involved,  it  is  necessary  to  allow  a  minimum  standstill  period  to  suspend  for  a 
reasonable time the conclusion of the contract in question, whether this occurs at the 
time of signing the contract or not. 

In  view  of  the  need,  recognised  by  all  the  interested  parties,  to  reconcile  speed  of 
award  procedures  and  effectiveness  of  national  review  procedures,  it  is  necessary  to 
combine, on the one hand, the requirement to observe a reasonable minimum standstill 
period  adapted  to  schedule  or  time  constraints  and  to  the  conditions  of  varying 
complexity  in  which  some  procedures  are  launched  and,  on  the  other  hand,  the 
requirement  to  transmit  by  the  quickest  available  means  of  communication  the 
essential information for anyone wanting to seek review. Such information includes in 
particular,  in  the  form  of  a  summary,  the  reasons  as  laid  down  in  Directives 
2004/17/EC and 2004/18/EC respectively. 

Since  the  purpose  of  Directives  2004/17/EC  and  2004/18/EC  is  to  modernise  and 
simplify  the  procedures  for  the  award  of  public  contracts,  the  requirement  of  a 
minimum  standstill  period  should  be  restricted  to  circumstances  in  which  economic 
operators  other  than  the  operator  to  whom  the  contract  has  been  awarded  can 
reasonably  avail  themselves  of  an  infringement  of  the  Community  provisions  which 
are  applicable  in  the  area  of  public  procurement  with  regard  to  transparency  and 
competitive tendering. 

(6) 

This  type  of  minimum  standstill  period  is  not  intended  to  apply  either  in  cases  of 
extreme urgency as defined by Directives 2004/17/EC and 2004/18/EC or to contracts 
explicitly excluded by these Directives. 

8 

OJ L 134 of 30.4.2004, p. 1. Directive as last amended by Regulation 2083/2005/EC. 

EN 

10 

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(7) 

(8) 

(9) 

However,  in  view  of  the  acknowledged  seriousness  of  any  illegal  direct  award  of  a 
contract,  and  in  order  to  ensure  effective  judicial  protection  to  anyone  concerned,  a 
minimum  standstill  period  should  be  applied  in  conjunction  with  a  requirement  of 
transparency  for  the  direct  award  of  any  contract  with  no  prior  publication  of  a 
contract  notice  or  no  competitive  tendering  in  accordance  with  the  derogations 
indicated  in  Directives  2004/17/EC  and  2004/18/EC  and,  in  any  case,  on  each 
occasion when an awarding authority awards directly a contract, the amount of which 
exceeds  the  thresholds  fixed  by  the  Directives,  without  prior  publication  or 
competitive  tendering  with  a  person  legally  distinct  from  it.  The  application  of  this 
standstill period, in conjunction with a requirement of transparency as indicated by the 
judgment of the Court of Justice in case C-26/03, Stadt Halle9, must make it possible 
to  combat  effectively  contracts  directly  and  illegally  awarded,  which  is  the  most 
serious breach of Community law in the field of public procurement on the part of an 
awarding authority. 

Since  this  Directive  must  fix  the  minimum  standstill  period  considered  essential  for 
the  exercise  of  effective  review,  it  is  necessary  to  ensure  the  coherence  of  the 
provisions  concerned  of  Directives  89/665/EEC  and  92/13/EEC,  so  that  the 
effectiveness  of  the  overall  mechanism  intended  to  allow  a  review  before  the 
conclusion of a contract is not prejudiced. 

In  particular,  when  a  Member  State  requires  that  a  person  intending  to  use  a  review 
procedure  must  inform  the  awarding  authority,  it  is  necessary  that  no  additional 
minimum  period  be  imposed  between  the  time  when  the  information  is  sent  to  the 
awarding  authority  and  the  time  when  review  is  sought.  Similarly,  when  a  Member 
State  requires  that  the  person  concerned  has  first  of  all  sought  review  with  the 
awarding authority, it is necessary that this person has a reasonable minimum period 
within  which  to  refer  to  the  competent  review  body  before  the  conclusion  of  the 
contract, in the event of his wishing to challenge the reply or lack of reply from the 
awarding authority. 

(10)  Seeking review shortly before the end of the standstill period must not have the effect 
of depriving the body responsible for review procedures of the minimum time needed 
to act, especially to extend the standstill period for the conclusion of the contract. It is 
thus necessary to have an independent minimum standstill period, initiated by the very 
fact  of  referral  to  the  body  responsible  for  review  procedures  and  allowing,  in  any 
case, the latter a short but reasonable time to act. 

(11)  For  the  same  reasons  of  ensuring  the  effectiveness  of  the  overall  mechanism,  it  is 
necessary  for  the  information  in  question  to  be  transmitted  and  for  the  review 
concerned to be sought by the quickest means of communication likely to maintain the 
effectiveness  of  the  minimum  standstill  period  and  able  to  provide  evidence  of  such 
communications.  There  should  thus  be  provision  in  this  context  for  transmission  by 
fax  or  electronic  medium  as  means  of  communication  combining  these  features  and, 
moreover, involving simplicity of use and lower cost for all the parties concerned. 

(12)  Similarly,  there  should  be  consistency  between,  on  the  one  hand,  the  periods  for 
appealing  against  awarding  authorities’  decisions  terminating  the  participation  of  a 

9 

Reports of Cases 2005, p. I-1, point 39. 

EN 

11 

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(13) 

tenderer  or  candidate  in  a  procedure  covered  by  Directives  2004/17/EC  and 
2004/18/EC and, on the other hand, the periods indicated above. 

In  order  to  observe  effective  review  periods  to  combat  the  race  to  sign  illegally 
awarded contracts and the illegal direct awards of contracts, which the Court of Justice 
has  called  the  most  serious  breach  of  Community  law  in  the  field  of  public 
procurement  on  the  part  of  an  awarding  authority,  there  should  be  provision  for  an 
effective,  proportionate  and  deterrent  sanction  against  any  awarding  authority  which 
has failed to comply with the minimum standstill periods laid down by this Directive. 
In these circumstances, as there is provision in Directives 89/665/EEC and 92/13/EEC 
for the Member States to ensure that the illegal decisions by awarding authorities can 
be  set  aside  by  the  bodies  responsible  for  review  procedures,  the  conclusion  of  any 
contract occurring in breach of these time limits should be considered invalid and the 
body  responsible  for  review  procedures  should  draw  all  the  consequences  on  the 
illegal  contract,  such  as  those  concerning the  recovery  of  any  sums  which  may  have 
been paid by the awarding authority. 

(14)  However, in order to ensure the respect of the proportionality of the sanctions applied, 
the  Member  States  should  give  the  body  responsible  for  review  procedures  the 
possibility  not  to  jeopardise  the  contract  or  to  recognise  some  of  its  effects  in  time, 
when  the  exceptional  circumstances  in  question  demand  the  respect  of  certain 
overriding reasons based on a general interest of a non-economic nature. In addition, 
the need to ensure over time the legal certainty of the decisions taken by the awarding 
authorities requires the establishment of a reasonable minimum period of limitation on 
appeals  seeking  to  establish  the  lack  of  validity  of  the  conclusion  of  a  contract  and 
thus to draw the consequences. 

(15)  Strengthening  the  effectiveness  of  national  reviews  thanks  to  this  Directive  should 
encourage those concerned to make greater use of the possibilities for review before 
the conclusion of a contract by way of interlocutory procedure. In these circumstances, 
the  corrective  mechanism  should  be  refocused  on  the  serious  infringements  of 
Community provisions on public procurement and it should be left to the Commission 
to  fix  for  the  Member  State  concerned  a  reasonable  deadline  for  reply  which  takes 
better account of the circumstances in question. 

(16)  The  voluntary  attestation  system  provided  for  by  Directive  92/13/EC,  whereby 
contracting  entities  have  the  possibility  of  having  the  conformity  of  their  award 
procedures established through regular examinations has been virtually unused, and it 
cannot thus achieve its objective of preventing a significant number of infringements 
of  Community  law  on  public  procurement.  On  the  other  hand,  the  requirement 
imposed  on  Member  States  by  Directive  92/13/EEC  to  ensure  the  permanent 
availability of bodies accredited for this purpose can represent an administrative cost 
for maintenance which is no longer justified in the light of the lack of real demand by 
contracting  entities.  For  these  reasons,  the  attestation  system  should  therefore  be 
abolished. 

(17)  Similarly,  the  conciliation  mechanism  provided  for  by  Directive  92/13/EEC  has  not 
elicited real interest from economic operators, both because of the fact that it does not 
of  itself  make  it  possible  to  obtain  provisional  binding  measures  likely  to  prevent  in 
time  the  illegal  conclusion  of  a  contract  and  also  because  of  its  character  which  is 
hardly  compatible  with  the  respect  of  the  particularly  short  deadlines  for  appeals 

EN 

12 

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aimed  at  provisional  measures  and  setting  aside  decisions  taken  unlawfully.  In 
addition, the potential effectiveness of the conciliation mechanism has been weakened 
further by the difficulties encountered in establishing a complete and sufficiently wide 
list  of  independent  conciliators  in  each  Member  State,  available  at  any  time  and 
capable  of  dealing  with  conciliation  requests  at  very  short  notice.  For  these  reasons, 
this conciliation mechanism should therefore be abolished. 

(18)  The  requirement  should  remain  for  the  Member  States  to  provide  regularly 
proportionate  information  on  the  operation  of  national  review  procedures,  by 
involving  the  Advisory  Committee  on  Public  Procurement  in  determining  the  extent 
and  nature  of  such  information.  Indeed,  only  by  making  such  information  available 
will  it  be  possible  to  assess  correctly  the  effects  of  the  changes  introduced  in 
connection with this Directive at the end of a significant period of implementation. 

(19)  Since,  for  the  reasons  stated  above,  the  objectives  of  this  Directive  cannot  be 
sufficiently  achieved  by  the  Member  States  and  can  therefore  be  better  achieved  at 
Community level, the Community may take measures in accordance with the principle 
of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of 
proportionality  as  set  out  in  that  Article,  this  Directive  does  not  go  beyond  what  is 
necessary to achieve those objectives, while respecting the principle of the procedural 
autonomy of the Member States. 

(20)  This  Directive  respects  fundamental  rights  and  observes  the  principles  recognised  in 
particular by the Charter of Fundamental Rights of the European Union. In particular, 
this Directive seeks to ensure full respect for the right to effective remedy and to a fair 
trial,  in  accordance  with  the  first  and  second  subparagraphs  of  Article  47  of  the 
Charter. 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 89/665/EEC shall be amended as follows: 

Article 1 shall be amended as follows: 

a) Paragraph 1 shall be replaced by the following text: 

"1. The Member States shall take the measures necessary to ensure that, as regards 
contract  award  procedures  falling  within  the  scope  of  Directive  2004/18/EC  of  the 
European  Parliament  and  of  the  Council(*),  the  decisions  taken  by  contracting 
authorities  may  be  reviewed  effectively  and,  in  particular,  as  rapidly  as  possible  in 
accordance with the conditions set out in Articles 2 to 2f, on the grounds that such 
decisions  have  infringed  Community  law  in  the  field  of  public  procurement  or 
national rules transposing that law. 

(*)  OJ L 134 of 30.4.2004, p. 114" 

b) Paragraph 3 shall be replaced by the following text: 

EN 

13 

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"The  Member  States  shall  ensure  that  the  review  procedures  are  available,  under 
detailed rules which the Member States may establish, at least to any person having 
or having had an interest in obtaining a particular public contract and who has been 
or risks being harmed by an alleged infringement." 

c) The following paragraphs 4 and 5 shall be added: 

"4.  The  Member  States  may  require  that  the  person  wishing  to  use  a  review 
procedure must have notified the contracting authority by fax or electronic means of 
the alleged infringement and of his intention to seek review. In this case, the Member 
States shall ensure that no minimum deadline is imposed between the moment when 
the  information  is  sent  to  the  contracting  authority  and  the  moment  when  an 
application for review is lodged with the body responsible for review procedures. 

Similarly, the Member States may require that the person concerned first seek review 
with the contracting authority. In this case, the Member States shall ensure that the 
submission  of  such  an  application  for  review  by  fax  or  electronic  means  results  in 
immediate  suspension  of  the  possibility  of  proceeding  to  the  conclusion  of  the 
contract. 

The  automatic  suspension  referred  to  in  the  second  subparagraph  shall  end  at  the 
expiry  of  a  deadline  which  may  not  be  less  than  five  working  days  from  the  day 
following  the  date  on  which  the  contracting  authority  has  sent  its  reply  by  fax  or 
electronic means. 

5. 
In the event of an application for review relating to circumstances in which the 
submissions  by  fax  or  electronic  means  referred  to  in  paragraph  4  did  or  did  not 
occur,  the  body  responsible  for  review  procedures,  independent  of  the  contracting 
authority,  shall  in  particular  consider  all  reasonable  and  relevant  evidence  which  is 
communicated  to it  by the  authors  of such submissions and which confirm that the 
submissions were sent and were received by the addressees." 

Article 2 shall be amended as follows: 

a) Paragraph 3 shall be replaced by the following text: 

"3.  Except  where  provided  for  in  Article  1  (4)  and  Articles  2a  to  2f,  review 
procedures  need  not  necessarily  have  automatic  suspensive  effects  on  the  contract 
award procedures to which they relate." 

b) The following paragraph 3a shall be inserted: 

"3a When  a body independent of the  contracting authority has to review a contract 
award  decision  or  a  decision  subsequent  thereto,  it  shall  inform  the  contracting 
authority without delay by fax or electronic means of the fact that it cannot proceed 
to the conclusion of the contract for a period determined by the Member State where 
the body is established and which cannot be less than five working days with effect 
from the day following the dispatch of the information concerned. After considering 
all the supporting documents of the review, and when it reaches the conclusion that 
the  period  of  suspension  referred  to  above  should  not  be  extended,  the  body  may 
terminate at any time the requirement not to conclude the contract." 

EN 

14 

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c) Paragraph 4 shall be replaced by the following text: 

"4.  The  Member  States  may  make  provision  that,  when  the  body  responsible  for 
review  procedures  considers  whether  provisional  measures  should  be  taken,  it  may 
take  into  account  the  probable  consequences  of  such  measures  for  all  the  interests 
likely  to  be  harmed,  including  the  public  interest,  and  decide  not  to  grant  these 
measures when the negative consequences could exceed the benefits. 

In making use of the option provided for in the first subparagraph, the Member States 
may not obstruct the application of Article 2f, when the contract concerned has been 
concluded in breach of Article 1 (4), Article 2 (3a), Articles 2a to 2d or Article 2e or 
in  breach  of  an  additional  provisional  measure  taken  by  the  body  responsible  for 
review procedures and intended to extend the suspension of conclusion. 

The decision not to grant provisional measures shall not prejudice any other claim of 
the person seeking such measures." 

d) Paragraph 6 shall be replaced by the following text:  

"6. Except where provided for in Article 1 (4) and Articles 2a to 2f, the effects of the 
exercise of the powers referred to in paragraph 1 on a contract concluded subsequent 
to its award shall be determined by national law. 

In addition, except where a decision must be set aside prior to an award of damages, 
a  Member  State  may  make  provision  that,  after  the  contract  has  been  concluded  in 
accordance  with  Article  1  (4),  Article  2  (3),  Articles  2a  to  2e  or  Article  2f,  the 
powers  of  the  body  responsible  for  review  procedures  shall  be  limited  to  granting 
damages to any person harmed by an infringement." 

e) In the first subparagraph of paragraph 8, the expression "court or tribunal within 
the meaning of Article 177 of the Treaty" shall be replaced by the expression "court 
or tribunal within the meaning of Article 234 of the Treaty". 

The following Articles 2a to 2f shall be inserted: 

Article 2a 

1. The Member States shall ensure that the persons referred to in Article 1 (3) have 
enough time for effective review of the decisions taken by the contracting authorities, 
by adopting the necessary provisions which respect the minimum conditions stated in 
paragraphs 2, 3 and 4 of this Article and Articles 2b, 2c and 2d. 

2.  The  contract  may  not  be  concluded  following  the  decision  to  award  a  public 
contract  falling  within  the  scope  of  Directive  2004/18/EC  before  the  expiry  of  a 
period of at least ten calendar days with effect from the day after the date on which 
the  contract  award  decision  is  communicated  to  the  tenderers  concerned  by  fax  or 
electronic  means.  The  communication  of  the  award  decision  to  each  tenderer 
concerned shall be accompanied by a summary of the relevant reasons referred to in 
Article 41 (2) of Directive 2004/18/EC. 

3.  By  way  of  derogation  from  paragraph  2,  in  the  cases  of  urgency  referred  to  in 
Article 38 (8) of Directive 2004/18/EC, the Member States may make provision that 

EN 

15 

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a  contract  may  not  be  concluded  following  the  decision  to  award  a  public  contract 
before the expiry of a period of at least seven calendar days from the day after the 
date  on  which  the  contract  award  decision  is  communicated  to  the  tenderers 
concerned by fax or electronic means. This period shall be automatically extended by 
three  calendar  days  when  a  person  referred  to  in  Article  1  (3)  notifies,  within  this 
period,  the  contracting  authority  concerned  by  fax  or  electronic  means  of  his 
intention to seek review. The communication of the award decision to each tenderer 
concerned shall be accompanied by a summary of the relevant reasons referred to in 
Article 41 (2) of Directive 2004/18/EC. 

The Member States may apply the first subparagraph in the case of contracts based 
on  a  framework  agreement  or  contracts  awarded  as  part  of  dynamic  purchasing 
systems  within  the  meaning  of  Articles  1  (5)  and  1  (6)  respectively  of  Directive 
2004/18/EC. 

4. The periods referred to in paragraph 2 and 3 shall not apply in cases of extreme 
urgency within the meaning of Article 31 (1) (c) of Directive 2004/18/EC. 

Article 2b 

The Member States may provide that the periods referred to in Article 2a (2) and (3) 
do not apply in the following cases: 

a) in the case of contracts based on a framework agreement concluded with a single 
economic operator within the meaning of Article 32 (3) of Directive 2004/18/EC; 

b) in the case of contracts based on a framework agreement concluded with several 
economic  operators  and  when  such  contracts  have  been  awarded  by  applying  the 
terms  set  out  in  the  framework  agreement,  without  resorting  again  to  competition, 
within the meaning of the first indent of the second subparagraph of Article 32 (4) of 
Directive 2004/18/EC; 

c) in the case of contracts awarded in connection with an open procedure within the 
meaning  of  Article  1  (11)  (a)  of  Directive  2004/18/EC  and  when  the  contracting 
authority has received only the bid of the tenderer who obtains the contract; 

d) in the case of contracts awarded in connection with a restricted procedure within 
the meaning of Article 1 (11) (b) of Directive 2004/18/EC and when, apart from the 
economic  operator  to  whom  the  contract  is  awarded,  all  the  economic  operators 
invited to submit a bid have already been the subject of a decision by the contracting 
authority subject to review and which terminates their participation in the procedure 
for reasons other than the contract award criteria; 

e) in the case of contracts awarded in connection with a negotiated procedure within 
the meaning of Article 1 (11) (d) of Directive 2004/18/EC and when, apart from the 
economic operator to whom the contract is awarded, all the economic operators who 
have expressed interest have already been the subject of a decision by the contracting 
authority subject to review and which terminates their participation in the procedure 
for reasons other than the contract award criteria. 

EN 

16 

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Article 2c 

1. When the Member States provide that any application for a review of a contracting 
authority’s  decision  taken  in  connection  or  in  relation  with  a  contract  award 
procedure falling within the scope of Directive 2004/18/EC must be made before the 
expiry of a specified period, this period may not be less than ten calendar days with 
effect from the day following the date on which the contracting authority’s decision 
is communicated by fax or electronic means to the tenderer or candidate concerned. 
The  communication  of  the  contracting  authority’s  decision  to  each  tenderer  or 
candidate  concerned  shall  be  accompanied  by  a  summary  of  the  relevant  reasons 
referred to in Article 41 (2) of Directive 2004/18/EC. 

2. The Member States which make use of the options provided for in Article 2a (3) 
may  provide  that  the  request  for  review  referred  to  in  paragraph  1  must  be  made 
within a period which may not be less than seven calendar days with effect from the 
is 
the  contracting  authority’s  decision 
day  following 
communicated by fax or electronic means to the tenderer or candidate concerned. 

the  date  on  which 

This  period  shall  be  automatically  extended  by  three  calendar  days  when  a  person 
referred  to  in  Article  1  (3)  notifies,  within  this  period,  the  contracting  authority 
concerned by fax or electronic means of his intention to seek review. 

The  communication  of  the  contracting  authority’s  decision  to  each  tenderer 
concerned shall be accompanied by a summary of the relevant reasons referred to in 
Article 41 (2) of Directive 2004/18/EC.  

Article 2d 

In  the  event  of  an  application  for  review  relating  to  circumstances  in  which  the 
communication by fax or electronic means referred to in Articles 2a and 2c did or did 
not  occur,  the  review  body  shall  in  particular  consider  all  reasonable  and  relevant 
evidence  which  is  communicated  to  it  by  the  contracting  authority  concerning 
dispatch by the latter and receipt by the tenderer or candidate concerned. 

Article 2e 

1. The Member States shall ensure the effectiveness of the interlocutory procedures 
and the procedures for setting aside decisions referred to in Articles 1 and 2 (1) (a) 
and  (b)  in  the  case  of  illegal  direct  awards  of  contracts,  in  the  conditions  stated  in 
paragraphs 2, 3 and 4 of this Article. 

2.  When  a  contracting  authority  considers  that  it  is  permitted,  in  the  light  of  the 
applicable  Community  law,  not  to  initiate  a  formal  procedure  consisting  of  prior 
publication and competitive tendering for the award of a public contract, the amount 
of  which  exceeds  the  corresponding  threshold  of  Directive  2004/18/EC,  the 
contracting  authority  shall,  prior  to  the  conclusion  of  the  contract  in  question,  take 
the following two measures: 

a)  adopt  an  award  decision  which  has  no  contractual  effect  and  can  be  subject  of 
review within the meaning of Articles 1 and 2; 

EN 

17 

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b)  publish  a  notice  ensuring  a  sufficient  degree  of  publicity  and  containing  at  least 
the information mentioned in the Annex to this Directive.  

The  publication  of  a  notice  in  accordance  with  Articles  35  (4)  and  36  of  Directive 
2004/18/EC shall fulfil the conditions stated in subparagraph (b) of this paragraph. 

3. A contract may be concluded following the contract award decision referred to in 
paragraph 2 only after the expiry of a period of at least ten calendar days with effect 
from the day following the date on which the notice mentioned in paragraph 2 (b) has 
begun to receive the required publicity. 

4. Paragraphs 2 and 3 shall not apply, either in cases of extreme urgency within the 
meaning  of  Article  31  (1)  (c)  of  Directive  2004/18/EC  or  to  contracts  explicitly 
excluded in accordance with Articles 12 to 18 thereof. 

Article 2f 

1.  The  Member  States  shall  ensure  compliance  with,  on  the  one  hand,  the  periods 
provided for in Articles 1 (4) and 2a (2) and (3) and, on the other hand, Article 2e, in 
the conditions stated in paragraphs 2, 3 and 4 of this Article. 

2.  The  conclusion  of  a  contract  in  infringement  of  the  provisions  referred  to  in 
paragraph 1 shall be considered invalid. 

3.  By  way  of  derogation  from  paragraph  2,  the  Member  States  may  provide  that  a 
contract  which  has  been  concluded  in  infringement  of  the  provisions  referred  to  in 
paragraph  1  nevertheless  has  certain  effects  between  the  parties  concerned  or  with 
regard to third parties, on account of the end of a limitation period which cannot be 
less than six months with effect from the effective date of conclusion. 

The derogation provided for in the first subparagraph may also be applied when, in 
connection with a review seeking to have established and to draw the consequences 
of  a  conclusion  in  infringement  of  paragraph  1,  a  review  body  independent  of  the 
contracting authority finds that certain overriding reasons based on a general interest 
of a non-economic nature require in the case in point that some effects of the contract 
should not be challenged. 

4. The Member States shall provide for a system of sanctions intended not to leave 
unpunished the conclusion of a contract in infringement of the provisions referred to 
in  paragraph  1,  when  the  circumstance  referred  to  in  paragraph  3  occur  or  when 
extreme  urgency  within  the  meaning  of  Article  31  (1)  (c)  of  Directive  2004/18/EC 
has been invoked by a contracting authority whereas all the conditions provided for 
by this provision were not met. 

The  Member  States  shall  notify  the  Commission  of  these  provisions  by  […]  (18 
months  after  the  date  of  publication  of  this  Directive  in  the  Official  Journal  of  the 
European  Union)  at  the  latest,  and  of  any  subsequent  amendment  as  rapidly  as 
possible. 

Article 3 shall be amended as follows: 

a) paragraphs 1 and 2 shall be replaced by the following text: 

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18 

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"1.  The  Commission  may  invoke  the  procedure  provided  for  in  paragraphs  2  to  5 
when, prior to a contract being concluded, it considers that a serious infringement of 
Community provisions in the field of public procurement has been committed during 
a contract award procedure falling within the scope of Directive 2004/18/EC. 

2.  The  Commission  shall  notify  the  Member  State  and  the  contracting  authority 
concerned of the reasons as to why it considers that a serious infringement has been 
committed  and  request  its  correction.  It  shall  allow  the  Member  State  concerned  a 
reasonable deadline for reply in view of the circumstances of the case in point". 

b) In paragraph 3, the opening sentence shall be replaced by the following text: 

"By  the  deadline  referred  to  in  paragraph  2,  the  Member  State  concerned  shall 
communicate to the Commission:" 

Article 4 shall be replaced by the following text: 

"Article 4 

1. The Member States shall communicate to the Commission each year information 
on the operation of  the  national review procedures which have occurred during the 
previous  calendar  years.  The  Commission  shall  determine,  in  consultation  with  the 
Advisory  Committee  on  Public  Procurement,  the  scope  and  nature  of  such 
information. 

2.  Before  the  expiry  of  a  period  of  six  years  from  (18  months  after  the  date  of 
publication  of  this  Directive  in  the  Official  Journal  of  the  European  Union),  the 
Commission,  in  consultation  with  the  Advisory  Committee  on  Public  Procurement, 
shall  review  the  manner  in  which  the  provisions  of  this  Directive  have  been 
implemented and make any proposals which may be considered necessary. 

The Annex appearing in Annex I to this Directive shall be added. 

Article 2 

Directive 92/13/EEC shall be amended as follows: 

1) Article 1 shall be amended as follows: 

a) Paragraph 1 shall be replaced by the following text: 

"1. The Member States shall take the measures necessary to ensure that the decisions 
taken  by  contracting  entities  may  be  reviewed  effectively  and,  in  particular,  as 
rapidly as possible in accordance with the conditions set out in Articles 2 to 2f, on 
the  grounds  that  such  decisions  have  infringed  Community  law  with  regard  to 
contract award procedures or national rules transposing such law concerning contract 
award procedures falling within the scope of Directive 2004/17/EC of the European 
Parliament and of the Council(*). 

(*) OJ L 134 of 30.4.2004, p. 1." 

b) Paragraph 3 shall be replaced by the following text: 

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"3. The Member States shall ensure that the review procedures are available, under 
detailed rules which the Member States may establish, at least to any person having 
or having had an interest in obtaining a particular public contract and who has been 
or risks being harmed by an alleged infringement." 

c) The following paragraphs 4 and 5 shall be added: 

"4.  The  Member  States  may  require  that  the  person  wishing  to  use  a  review 
procedure must have notified the contracting entity by fax or electronic means of the 
alleged  infringement  and  of  his  intention  to  seek  review.  In  this  case,  the  Member 
States shall ensure that no minimum deadline is imposed between the moment when 
the information is sent to the contracting entity and the moment when an application 
for review is lodged with the body responsible for review procedures. 

Similarly, the Member States may require that the person concerned first seek review 
with the contracting authority. In this case, the Member States shall ensure that the 
submission of such an application for review by fax or electronic medium results in 
immediate  suspension  of  the  possibility  of  proceeding  to  the  conclusion  of  the 
contract. 

The  automatic  suspension  referred  to  in  the  second  subparagraph  shall  end  at  the 
expiry  of  a  period  which  may  not  be  less  than  five  working  days  from  the  day 
following  the  date  on  which  the  contracting  entity  has  sent  its  reply  by  fax  or 
electronic means. 

5. 
In the event of an application for review relating to circumstances in which the 
submissions  by  fax  or  electronic  means  referred  to  in  paragraph  4  did  or  did  not 
occur,  the  body  responsible  for  review  procedures,  independent  of  the  contracting 
entity,  shall  in  particular  consider  all  reasonable  and  relevant  evidence  which  is 
communicated  to  it  by the  authors  of  such submissions and which confirm that the 
submissions were sent and were received by the addressees." 

Article 2 shall be amended as follows: 

a) Paragraph 3 shall be replaced by the following text: 

"3.  Except  where  provided  for  in  Article  1  (4)  and  Articles  2a  to  2f,  review 
procedures  need  not  necessarily  have  automatic  suspensive  effects  on  the  contract 
award procedures to which they relate.» 

b) The following paragraph 3a shall be inserted: 

"3a  When  a  body  independent  of  the  contracting  entity  has  to  review  a  contract 
award decision or a decision subsequent thereto, it shall inform the contracting entity 
without  delay  by  fax  or  electronic  means  of  the  fact  that  it  cannot  proceed  to  the 
conclusion  of  the  contract  for  a  period  determined  by  the  Member  State  where  the 
body is established and which cannot be less than five working days with effect from 
the day following the dispatch of the information concerned. After considering all the 
supporting  documents  of  the  review,  and  when  it  reaches  the  conclusion  that  the 
period  of  suspension  referred  to  above  should  not  be  extended,  the  body  may 
terminate at any time the requirement not to conclude the contract.". 

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c) Paragraph 4 shall be replaced by the following text: 

"4.  The  Member  States  may  make  provision  that,  when  the  body  responsible  for 
review  procedures  considers  whether  provisional  measures  should  be  taken,  it  may 
take  into  account  the  probable  consequences  of  such  measures  for  all  the  interests 
likely  to  be  harmed,  including  the  public  interest,  and  decide  not  to  grant  these 
measures when the negative consequences could exceed the benefits. 

In making use of the option provided for in the first subparagraph, the Member States 
may not obstruct the application of Article 2f, when the contract concerned has been 
concluded in breach of Article 1 (4), Article 2 (3a), Articles 2a to 2d or Article 2e or 
in  breach  of  an  additional  provisional  measure  taken  by  the  body  responsible  for 
review procedures and intended to extend the suspension of conclusion. 

The decision not to grant provisional measures shall not prejudice any other claim of 
the person seeking such measures." 

d) Paragraph 6 shall be replaced by the following text:  

"6. Except where provided for in Article 1 (4) and Articles 2a to 2f, the effects of the 
exercise of the powers referred to in paragraph 1 on a contract concluded subsequent 
to its award shall be determined by national law. 

In addition, except where a decision must be set aside prior to an award of damages, 
a  Member  State  may  make  provision  that,  after  the  contract  has  been  concluded  in 
accordance  with  Article  1  (4),  Article  2  (3),  Articles  2a  to  2e  or  Article  2f,  the 
powers  of  the  body  responsible  for  review  procedures  shall  be  limited  to  granting 
damages to any person harmed by an infringement." 

e) In the first subparagraph of paragraph 9, the expression "court or tribunal within 
the meaning of Article 177 of the Treaty" shall be replaced by the expression "court 
or tribunal within the meaning of Article 234 of the Treaty". 

The following Articles 2a to 2f shall be inserted: 

“Article 2a 

1. The Member States shall ensure that the persons referred to in Article 1 (3) have 
enough time for effective review of the decisions taken by the contracting entities, by 
adopting  the  necessary  provisions  which  respect  the  minimum  conditions  stated  in 
paragraphs 2, 3 and 4 of this Article and Articles 2b, 2c and 2d. 

2.  The  contract  may  not  be  concluded  following  the  decision  to  award  a  public 
contract  falling  within  the  scope  of  Directive  2004/17/EC  before  the  expiry  of  a 
period of at least calendar ten days with effect from the day after the date on which 
the contract award decision was communicated to the tenderers concerned by fax or 
electronic  means.  The  communication  of  the  award  decision  to  each  tenderer 
concerned shall be accompanied by a summary of the relevant reasons referred to in 
Article 49 (2) of Directive 2004/17/EC. 

3. By way of derogation from paragraph 2, in the cases where the shortest reduced 
time  limits  referred  to  in  Article  45  (8)  of  Directive  2004/17/EC  are  applied,  the 

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Member States may make provision that a contract may not be concluded following 
the decision to award a public contract before the expiry of a period of at least seven 
calendar days from the day after the date on which the contract award decision was 
communicated to the tenderers concerned by fax or electronic medium. This period 
shall be automatically extended by three calendar days when a person referred to in 
Article 1 (3)  notifies,  within this period, the contracting entity concerned by fax or 
electronic  means  of  his  intention  to  seek  review.  The  communication  of  the  award 
decision  to  each  tenderer  concerned  shall  be  accompanied  by  a  summary  of  the 
relevant reasons referred to in Article 49 (2) of Directive 2004/17/EC. 

The Member States may apply the first subparagraph in the case of contracts based 
on a framework agreement within the meaning of Article 14 (2) and (3) of Directive 
2004/17/EC or contracts awarded as part of dynamic purchasing systems within the 
meaning of Article 15 thereof. 

4. The periods referred to in paragraph 2 and 3 shall not apply in cases of extreme 
urgency within the meaning of Article 40 (3) (d) of Directive 2004/17/EC. 

Article 2b 

1. The Member States may provide that the periods referred to in Article 2a (2) (3) or 
(4) do not apply in the following cases: 

a) in the case of contracts based on a framework agreement concluded with a single 
economic  operator  in  accordance  with  Articles  14  (2)  and  40  (3)  (i)  of  Directive 
2004/17/EC; 

b) in the case of contracts awarded in connection with an open procedure within the 
meaning of Article 1 (9) (a) of Directive 2004/17/EC and when the contracting entity 
has received only the bid of the tenderer who obtains the contract; 

c) in the case of contracts awarded in connection with a restricted procedure within 
the meaning of Article 1 (9) (b) of Directive 2004/17/EC and when, apart from the 
economic  operator  to  whom  the  contract  is  awarded,  all  the  economic  operators 
invited to submit a bid have already been the subject of a decision by the contracting 
entity subject to review and which terminates their participation in the procedure for 
reasons other than the contract award criteria; 

d) in the case of contracts awarded in connection with a negotiated procedure within 
the meaning of Article 1 (9) (c) of Directive 2004/17/EC and when, apart from the 
economic operator to whom the contract is awarded, all the economic operators who 
have expressed interest have already been the subject of a decision by the contracting 
entity subject to review and which terminates their participation in the procedure for 
reasons other than the contract award criteria. 

Article 2c 

1.  When  the  Member  States  provide  that  any  request  for  a  review  of  a  contracting 
entity’s decision taken in connection or in relation with a contract award procedure 
falling within the scope of Directive 2004/17/EC must be made before the expiry of a 
specified period, this period may not be less than ten calendar days with effect from 

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the  day  following  the  date  on  which  the  contracting  entity's  decision  is 
communicated  by  fax  or  electronic  means  to  the  tenderer  or  candidate  concerned. 
The communication of the contracting entity’s decision to each tenderer or candidate 
concerned shall be accompanied by a summary of the relevant reasons referred to in 
Article 49 (2) of Directive 2004/17/EC. 

2. The Member States which make use of the options provided for in Article 2a (3) 
may  provide  that  the  request  for  review  referred  to  in  paragraph  1  must  be  made 
within a period which may not be less than seven calendar days with effect from the 
day  following  the  date  on  which  the  contracting  entity’s  decision  is  communicated 
by fax or electronic means to the tenderer or candidate concerned. 

This  period  shall  be  automatically  extended  by  three  calendar  days  when  a  person 
referred  to  in  Article  1  (3)  notifies,  within  this  period,  the  contracting  entity 
concerned by fax or electronic means of his intention to seek review. 

The  communication  of  the  contracting  entity’s  decision  to  each  tenderer  concerned 
shall be accompanied by a summary of the relevant reasons referred to in Article 49 
(2) of Directive 2004/17/EC. 

Article 2d 

In  the  event  of  an  application  for  review  relating  to  circumstances  in  which  the 
communication by fax or electronic means referred to in Articles 2a and 2c did or did 
not  occur,  the  review  body  shall  in  particular  consider  all  reasonable  and  relevant 
evidence which is communicated to it by the contracting entity concerning dispatch 
by the latter and its receipt by the tenderer or candidate concerned. 

Article 2e 

1. The Member States shall ensure the effectiveness of the interlocutory procedures 
and the procedures for setting aside decisions referred to in Articles 1 and 2 (1) (a) 
(b) and (c) in the case of illegal direct awards of contracts , in the conditions stated in 
paragraphs 2, 3 and 4 of this Article. 

2.  When  a  contracting  entity  considers  that  it  is  permitted,  in  the  light  of  the 
applicable  Community  law,  not  to  initiate  a  formal  procedure  consisting  of  prior 
publication  and  competitive  tendering  measures  for  the  award  of  a  public  contract, 
the amount of which exceeds the corresponding threshold of Directive 2004/17/EC, 
the  contracting  authority  shall,  prior  to  the  conclusion  of  the  contract  in  question, 
take the following two measures: 

a) adopt an award decision which has no contractual effect and can be the subject of 
review within the meaning of Articles 1 and 2; 

b)  publish  a  notice  ensuring  a  sufficient  degree  of  publicity  and  containing  at  least 
the information mentioned in the Annex to this Directive.  

The  publication  of  a  notice  in  accordance  with  Articles  43  and  44  of  Directive 
2004/17/EC shall fulfil the conditions stated in subparagraph (b) of this paragraph. 

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3. A contract may be concluded following the contract award decision only after the 
expiry of a period of at least ten calendar days with effect from the day following the 
date  on  which  the  notice  mentioned  in  paragraph  2  (b)  has  begun  to  receive  the 
required publicity. 

4. Paragraphs 2 and 3 shall not apply, either in cases of extreme urgency within the 
meaning  of  Article  40  (3)  (d)  of  Directive  2004/17/EC  or  to  contracts  explicitly 
excluded in accordance with Articles 19 to 26 thereof. 

Article 2f 

1.  The  Member  States  shall  ensure  compliance  with,  on  the  one  hand,  the  periods 
provided for in Articles 1 (4) and 2a (2) and (3) and, on the other hand, Article 2e, in 
the conditions stated in paragraphs 2, 3 and 4 of this Article. 

2.  The  conclusion  of  a  contract  in  infringement  of  the  provisions  referred  to  in 
paragraph 1 shall be considered invalid. 

3.  By  way  of  derogation  from  paragraph  2,  the  Member  States  may  provide  that  a 
contract  which  has  been  concluded  in  infringement  of  the  provisions  referred  to  in 
paragraph  1  nevertheless  has  certain  effects  between  the  parties  concerned  or  with 
regard to third parties, because of the end of a limitation period which cannot be less 
than six months with effect from the effective date of conclusion. 

The derogation provided for in the first subparagraph may also be applied when, in 
connection with a review seeking to have established and to draw the consequences 
of  a  conclusion  in  infringement  of  paragraph  1,  a  review  body  independent  of  the 
contracting entity finds that certain overriding reasons based on a general interest of 
a non-economic nature require in the case in point that some effects of the contract 
should not be challenged. 

4. The Member States shall provide for a system of sanctions intended not to leave 
unpunished  the  conclusion  of  a  contract  in  infringement  of  paragraph  1,  when  the 
circumstances referred to in paragraph 3 occur or when extreme urgency within the 
meaning  of  Article  40  (3)  (d)  of  Directive  2004/17/EC  has  been  invoked  by  a 
contracting authority whereas all the conditions provided for by this provision were 
not met. 

The  Member  States  shall  notify  the  Commission  of  these  provisions  by  […]  (18 
months  after  the  date  of  publication  of  this  Directive  in  the  Official  Journal  of  the 
European  Union)  at  the  latest,  and  of  any  subsequent  amendment  as  rapidly  as 
possible." 

4) Articles 3 to 7 shall be deleted. 

5) Article 8 shall be amended as follows: 

a) Paragraphs 1 and 2 shall be replaced by the following text: 

“1. The Commission may invoke the procedures provided for in paragraphs 2 to 5 if 
it  considers  that  a  serious  infringement  of  Community  provisions  in  the  field  of 
public  procurement  has  been  committed  during  a  contract  award  procedure  falling 

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within  the  scope  of  Directive  2004/17/EC  or  with  regard  to  Article  27  (a)  of  the 
Directive in the case of contracting entities to which this provision applies. 

2.  The  Commission  shall  notify  the  Member  State  and  the  contracting  entity 
concerned  of  the  reasons  which  have  prompted  it  to  conclude  that  a  serious 
infringement has been committed and request that it be corrected by suitable means. 

It shall allow the Member State concerned a reasonable deadline for reply in view of 
the circumstances of the case in point." 

b) In paragraph 3, the opening sentence shall be replaced by the following text: 

"3.  By  the  deadline  referred  to  in  paragraph  2,  the  Member  State  concerned  shall 
communicate to the Commission:" 

6) Articles 9 to 11 shall be deleted. 

7) Article 12 shall be replaced by the following text: 

Article 12 

"1. The Member States shall communicate to the Commission each year information 
on the operation of  the  national review procedures which have occurred during the 
previous  calendar  years.  The  Commission  shall  determine,  in  consultation  with  the 
Advisory  Committee  on  Public  Procurement,  the  scope  and  nature  of  such 
information. 

2.  Before  the  expiry  of  a  period  of  six  years  from  (18  months  after  the  date  of 
publication  of  this  Directive  in  the  Official  Journal  of  the  European  Union),  the 
Commission,  in  consultation  with  the  Advisory  Committee  on  Public  Procurement, 
shall  review  the  manner  in  which  the  provisions  of  this  Directive  have  been 
implemented and make any proposals which may be considered necessary." 

8) The Annex appearing in Annex II to this Directive shall be added. 

Article 3 

Transposition 

1. The Member States shall bring into force the laws, regulations and administrative 
provisions necessary to comply with this Directive by […] (18 months after the date 
of publication of this Directive in the Official Journal of the European Union) at the 
latest.  They  shall  communicate  immediately  to  the  Commission  the  texts  of  such 
provisions and a correlation table between the provisions and this Directive. 

When  the  Member  States  adopt  these  provisions,  they  shall  contain  a  reference  to 
this  Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their 
publication. The Member States shall determine how such a reference is to be made. 

2.  The  Member  States  shall  communicate  to  the  Commission  the  texts  of  the  main 
provisions of domestic law which they adopt in the field governed by this Directive. 

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This  Directive  shall  enter  into  force  on  the  twentieth  day  following  its  publication  in  the 
Official Journal of the European Union. 

Article 4 

Article 5 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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ANNEX I  

"ANNEX  

Minimum information to appear 
in the notice mentioned in Article 2e (2) (b) 

–  name, address and contact point(s) of the contracting authority; 

–  title attributed to the contract by the contracting authority; 

–  type  of  contract  (works/supplies/services)  and  location  of  works  or  place  of 

delivery or performance; 

–  short description of the contract; 

–  CPV (common procurement vocabulary) classification; 

–  total final value of awarded contract; 

–  date of contract award decision; 

–  justification  of  the  decision  not  to  initiate  formal  procedure  consisting  of  prior 
publication  and  competitive  tendering  for  the  award  of  a  public  contract,  the 
amount  of  which  exceeds  the  corresponding  threshold  of  Directive  2004/18/EC, 
with reference to the case(s) referred to in Article 31 of Directive 2004/18/EC or 
any other justification in compliance with applicable Community law; 

–  name and address of the economic operator to whom the contract is awarded; 

–  precise indication of the body responsible for review procedures and the deadlines 

for seeking review; 

–  service from which information may be obtained concerning appeal procedures." 

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ANNEXE II  

"ANNEX  

Minimum information to appear 
in the notice mentioned in Article 2e (2) (b) 

–  name, address and contact point(s) of the contracting body; 

–  title attributed to the contract by the contracting body; 

–  type  of  contract  (works/supplies/services)  and  location  of  works  or  place  of 

delivery or performance; 

–  short description of the contract; 

–  CPV (common procurement vocabulary) classification; 

–  total final value of awarded contract; 

–  date of contract award decision; 

–  justification  of  the  decision  not  to  initiate  formal  procedure  consisting  of  prior 
publication  and  competitive  tendering  for  the  award  of  a  public  contract,  the 
amount  of  which  exceeds  the  corresponding  threshold  of  Directive  2004/17/EC, 
with reference to the case(s) referred to in Article 40 (3) of Directive 2004/17/EC 
or any other justification in compliance with applicable Community law; 

–  name and address of the economic operator to whom the contract is awarded; 

–  precise indication of the body responsible for review procedures and the deadlines 

for seeking review; 

–  service from which information may be obtained concerning appeal procedures." 

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