Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (Text with EEA relevance )
Date: 2007-12-11
Institutions: Council of the European Union, European Parliament
Subjects: appeal, award of contract, judicial proceedings

20.12.2007

EN

Official Journal of the European Union

L 335/31

DIRECTIVES

DIRECTIVE 2007/66/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 December 2007

amending Council Directives 89/665/EEC and 92/13/EEC 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
Community, and in particular Article 95 thereof,

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

sectors (5)

transport and
entities operating in the water, energy,
telecommunications
the
review
concern
procedures with regard to contracts
awarded by
contracting authorities as referred to in Article 1(9) of
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 contracts (6)
and contracting entities as referred to in Article 2 of
Directive 2004/17/EC of the European Parliament and
of
the Council of 31 March 2004 coordinating the
procurement procedures of entities operating in the
water, energy, transport and postal services sectors (7).
Directives 89/665/EEC and 92/13/EEC are intended to
Directives
ensure
2004/18/EC and 2004/17/EC.

application

effective

the

of

Having regard to the opinion of
Regions (2),

the Committee of

the

(2)

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

Justice of

Directives 89/665/EEC and 92/13/EEC therefore apply
only to contracts falling within the scope of Directives
2004/18/EC and 2004/17/EC as interpreted by the Court
of
the European Communities, whatever
competitive procedure or means of calling for compe-
including design contests, qualification
tition is used,
systems and dynamic purchasing systems. According to
the case law of the Court of Justice, the Member States
should ensure that effective and rapid remedies are
available against decisions taken by contracting auth-
orities and contracting entities as to whether a particular
contract falls within the personal and material scope of
Directives 2004/18/EC and 2004/17/EC.

(1)

Council Directives 89/665/EEC of 21 December 1989 on
the coordination of the laws, regulations and adminis-
trative provisions relating to the application of review
procedures to the award of public supply and public
works contracts (4) and 92/13/EEC of 25 February
1992 coordinating the laws, regulations and adminis-
trative
of
Community rules on the procurement procedures of

application

provisions

relating

the

to

(3)

Consultations of the interested parties and the case law
of the Court of Justice have revealed a certain number of
weaknesses in the review mechanisms in the Member
States. As a result of these weaknesses, the mechanisms

(1) OJ C 93, 27.4.2007, p. 16.
(2) OJ C 146, 30.6.2007, p. 69.
(3) Opinion of the European Parliament of 21 June 2007 (not yet
Journal) and Council Decision of 15

published in the Official
November 2007.

(5) OJ L 76, 23.3.1992, p. 14. Directive as last amended by Directive

2006/97/EC (OJ L 363, 20.12.2006, p. 107).

(6) OJ L 134, 30.4.2004, p. 114. Directive as last amended by Directive

2006/97/EC.

(4) OJ L 395, 30.12.1989, p. 33. Directive as amended by Directive

(7) OJ L 134, 30.4.2004, p. 1. Directive as last amended by Directive

92/50/EEC (OJ L 209, 24.7.1992, p. 1).

2006/97/EC.

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established by Directives 89/665/EEC and 92/13/EEC do
not always make it possible to ensure compliance with
Community law, especially at a time when infringements
can still be corrected. Consequently, the guarantees of
transparency and non-discrimination sought by those
Directives should be strengthened to ensure that
the
Community as a whole fully benefit from the positive
effects of the modernisation and simplification of the
rules on public procurement achieved by Directives
2004/18/EC and 2004/17/EC. Directives 89/665/EEC
and 92/13/EEC should therefore be amended by adding
the essential clarifications which will allow the results
intended by the Community legislature to be attained.

(4)

(5)

(6)

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. This sometimes
results in contracting authorities and contracting entities
who wish to make irreversible the consequences of the
disputed award decision proceeding very quickly to the
to remedy this
the contract.
signature of
weakness, which is a serious obstacle
to effective
judicial protection for the tenderers concerned, namely
those tenderers who have not yet been definitively
is necessary to provide for a minimum
excluded,
standstill period during which the conclusion of
the
contract
irrespective of
whether conclusion occurs at the time of signature of
the contract or not.

in question is

suspended,

In order

it

The duration of the minimum standstill period should
take into account different means of communication. If
rapid means of communication are used, a shorter period
can be provided for than if other means of communi-
cation are used. This Directive only provides
for
minimum standstill periods. Member States are free to
introduce or to maintain periods which exceed those
minimum periods. Member States are also free to
decide which period should apply, if different means of
communication are used cumulatively.

The standstill period should give the tenderers concerned
sufficient time to examine the contract award decision
and to assess whether it is appropriate to initiate a review
procedure. When the award decision is notified to them,
the tenderers concerned should be given the relevant
them to seek
essential
information which is
to
accordingly
same
review. The
effective
candidates to the extent that the contracting authority
or contracting entity has not made available in due
time information about the rejection of their application.

for
applies

(7)

Such relevant
in particular, a
information includes,
summary of the relevant reasons as set out in Article
41 of Directive 2004/18/EC and Article 49 of Directive

(8)

(9)

the standstill period
2004/17/EC. As the duration of
varies from one Member State to another,
is also
important that the tenderers and candidates concerned
should be informed of the effective period available to
them to bring review proceedings.

it

This type of minimum standstill period is not intended to
apply if Directive 2004/18/EC or Directive 2004/17/EC
does not require prior publication of a contract notice in
the Official Journal of the European Union, in particular in
cases of extreme urgency as provided for in Article
31(1)(c) of Directive 2004/18/EC or Article 40(3)(d) of
Directive 2004/17/EC. In those cases it is sufficient to
provide
the
conclusion of the contract. Similarly, a standstill period
is not necessary if the only tenderer concerned is the one
who is awarded the contract and there are no candidates
concerned.
In this case there is no other person
remaining in the tendering procedure with an interest
in receiving the notification and in benefiting from a
standstill period to allow for effective review.

review procedures

effective

after

for

a

or

gains

those

system,

dynamic

efficiency

purchasing

intended by

Finally,
in cases of contracts based on a framework
a
agreement
mandatory standstill period could have an impact on
the
tendering
procedures. Member States should be able therefore,
instead of introducing a mandatory standstill period, to
provide for ineffectiveness as an effective sanction in
both Directives
accordance with Article
89/665/EEC and 92/13/EEC for infringements of
the
the second subparagraph of Article
second indent of
and (6) of Directive
32(4)
2004/18/EC, and of Article 15(5) and (6) of Directive
2004/17/EC.

and of Article 33(5)

2d

of

(10)

In the cases referred to in Article 40(3)(i) of Directive
2004/17/EC, contracts based on a framework agreement
do not require prior publication of a contract notice in
the Official Journal of the European Union. In those cases a
standstill period should not be mandatory.

(11) When a Member State requires a person intending to use
a review procedure to inform the contracting authority
or contracting entity of that intention, it is necessary to
make it clear that this should not affect the standstill
review.
period or any other period to apply for
Furthermore, when a Member State requires that
the
person concerned has first sought a review with the
contracting
is
this person should have a reasonable
necessary that
to the
minimum period within which to refer
competent review body before the conclusion of
the
contract,
in the event that that person should wish to
challenge the reply or lack of reply from the contracting
authority or contracting entity.

authority or

contracting

entity,

it

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Official Journal of the European Union

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(12)

(13)

(14)

(15)

review procedures of

Seeking review shortly before the end of the minimum
standstill period should not have the effect of depriving
the body responsible for
the
minimum time needed to act,
in particular to extend
the standstill period for the conclusion of the contract.
It
is thus necessary to provide for an independent
minimum standstill period that should not end before
the review body has taken a decision on the application.
This should not prevent the review body from making a
such is
prior assessment of whether
admissible. Member States may provide that this period
shall end either when the review body has taken a
decision on the
interim measures,
application for
including on a further suspension of the conclusion of
the contract, or when the review body has taken a
decision on the merits of the case, in particular on the
application for the setting aside of an unlawful decision.

the review as

In order to combat the illegal direct award 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 a contracting authority or
contracting entity, there should be provision for effective,
proportionate and dissuasive
sanctions. Therefore a
contract resulting from an illegal direct award should
in principle be considered ineffective. The ineffectiveness
should not be automatic but should be ascertained by or
should be the result of a decision of an independent
review body.

is

those

economic operators which have

Ineffectiveness
the most effective way to restore
competition and to create new business opportunities
been
for
their opportunity to compete.
deprived illegally of
Direct awards within the meaning of
this Directive
should include all contract awards made without prior
publication of a contract notice in the Official Journal of
the European Union within the meaning of Directive
2004/18/EC. This corresponds to a procedure without
prior
competition within the meaning of
Directive 2004/17/EC.

call

for

Possible justifications
for a direct award within the
meaning of this Directive may include the exemptions
in Articles 10 to 18 of Directive 2004/18/EC, the appli-
cation of Article 31, Article 61 or Article 68 of Directive
2004/18/EC,
in
accordance with Article 21 of Directive 2004/18/EC or
a lawful ‘in-house’ contract award following the interpret-
ation of the Court of Justice.

award of

contract

service

the

a

(16)

The same applies to contracts which meet the conditions
for an exclusion or special arrangements in accordance
with Article 5(2), Articles 18 to 26, Articles 29 and 30
or Article 62 of Directive 2004/17/EC, to cases involving
the application of Article 40(3) of Directive 2004/17/EC

or to the award of a service contract in accordance with
Article 32 of Directive 2004/17/EC.

(17) A review procedure should be available at least to any
person having or having had an interest in obtaining a
particular contract and who has been or risks being
harmed by an alleged infringement.

(18)

(19)

In order to prevent serious infringements of the standstill
obligation and automatic suspension, which are pre-
requisites for effective review, effective sanctions should
apply. Contracts that are concluded in breach of the
standstill
suspension should
automatic
therefore be considered ineffective in principle if they
of Directive
are
2004/18/EC or Directive 2004/17/EC to the extent that
those infringements have affected the chances of
the
tenderer applying for review to obtain the contract.

combined with

infringements

period

or

of

the

other

infringements

States might

of
consider

formal
In
case
requirements, Member
the
principle of ineffectiveness to be inappropriate. In those
cases Member States
should have the flexibility to
provide for alternative penalties. Alternative penalties
should be limited to the imposition of fines to be paid
to a body independent of the contracting authority or
entity or to a shortening of the duration of the contract.
It is for Member States to determine the details of alter-
native penalties and the rules of their application.

(20)

This Directive should not exclude the application of
stricter sanctions in accordance with national law.

(21)

The objective to be achieved where Member States lay
down the rules which ensure that a contract shall be
considered ineffective is that the rights and obligations
of the parties under the contract should cease to be
enforced and performed. The consequences
resulting
from a contract being considered ineffective should be
determined by national law. National law may therefore,
for example, provide for the retroactive cancellation of all
contractual obligations (ex tunc) or conversely limit the
scope of
the cancellation to those obligations which
would still have to be performed (ex nunc). This should
not lead to the absence of forceful penalties if the obli-
gations deriving from a contract have already been
fulfilled either entirely or almost entirely. In such cases
Member States should provide for alternative penalties as
well, taking into account the extent to which a contract
law.
remains
Similarly,
the consequences concerning the possible
recovery of any sums which may have been paid, as
well as all other forms of possible restitution, including
restitution in value where restitution in kind is not
possible, are to be determined by national law.

in force in accordance with national

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(22) However, in order to ensure the proportionality of the
sanctions applied, Member States may grant the body
responsible for review procedures the possibility of not
jeopardising the contract or of recognising some or all of
its temporal effects, when the exceptional circumstances
of the case concerned require certain overriding reasons
relating to a general
interest to be respected. In those
cases alternative penalties should be applied instead.
The
contracting
contracting entity should examine all
authority or
relevant aspects in order to establish whether overriding
reasons relating to a general
interest require that the
effects of the contract should be maintained.

independent of

review body

the

(23)

(24)

(25)

(26)

In exceptional cases the use of the negotiated procedure
without publication of a contract notice within the
meaning of Article 31 of Directive 2004/18/EC or
Article 40(3) of Directive 2004/17/EC is permitted
immediately after the cancellation of the contract. If in
those cases, for technical or other compelling reasons,
the remaining contractual obligations can, at that stage,
only be performed by the economic operator which has
been awarded the contract, the application of overriding
reasons might be justified.

Economic interests in the effectiveness of a contract may
only be considered as overriding reasons if in exceptional
circumstances
ineffectiveness would lead to dispro-
portionate consequences. However, economic interests
directly linked to the contract concerned should not
constitute overriding reasons.

Furthermore,
the need to ensure over time the legal
certainty of decisions taken by contracting authorities
and contracting entities requires the establishment of a
limitation on reviews
reasonable minimum period of
seeking to establish that the contract is ineffective.

In order to avoid legal uncertainty which may result from
ineffectiveness, Member States should provide for an
exemption from any finding of ineffectiveness in cases
where the contracting authority or contracting entity
considers that the direct award of any contract without
prior publication of a contract notice in the Official
Journal of the European Union is permissible in accordance
with Directives 2004/18/EC and 2004/17/EC and has
applied a minimum standstill period allowing for
effective remedies. The voluntary publication which
imply any
triggers
standstill period does not
extension
from Directive
deriving
2004/18/EC or Directive 2004/17/EC.

obligations

this
of

(27) As this Directive strengthens national review procedures,
especially in cases of an illegal direct award, economic
operators should be encouraged to make use of these

(28)

(29)

(30)

new mechanisms. For reasons of legal certainty the en-
forceability of the ineffectiveness of a contract is limited
to a certain period. The effectiveness of these time limits
should be respected.

the

effectiveness of national

Strengthening
review
procedures should encourage those concerned to make
greater use of the possibilities for review by way of inter-
locutory procedure before the conclusion of a contract.
In those circumstances, the corrective mechanism should
be refocused on serious infringements of Community law
on public procurement.

It cannot

The voluntary attestation system provided for by
Directive 92/13/EEC, whereby contracting entities have
the possibility of having the conformity of their award
procedures established through periodic examinations,
thus achieve its
has been virtually unused.
objective of preventing a significant number of
in-
fringements 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 maintenance cost which is
no longer
real
demand by contracting entities. For these reasons, the
attestation system should be abolished.

justified in the light of

the lack of

it does not of

Similarly, the conciliation mechanism provided for by
interest
Directive 92/13/EEC has not elicited any real
from economic operators. This is due both to the fact
that
itself make it possible to obtain
binding interim measures likely to prevent in time the
illegal conclusion of a contract, and also to its nature,
which is not readily compatible with observance of the
particularly short deadlines applicable to reviews seeking
interim measures and the setting aside of 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.
the conciliation mechanism should
For these reasons,
be abolished.

(31)

The Commission should be entitled to request Member
States to provide it with information on the operation of
national review procedures proportionate to the objective
pursued by involving the Advisory Committee for Public
Contracts 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 by this Directive at
the end of a significant period of implementation.

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(32)

The Commission should review progress made in the
Member States and report to the European Parliament
and to the Council on the
this
Directive no later than three years after its deadline for
implementation.

effectiveness of

(33)

(34)

(35)

(36)

the implementation of
The measures necessary for
Directives 89/665/EEC and 92/13/EEC should be
adopted
Council Decision
1999/468/EC of 28 June 1999 laying down the
implementing powers
the exercise of
procedures for
conferred on the Commission (1).

accordance with

in

Since, for the reasons stated above, the objective of this
Directive, namely improving the effectiveness of review
procedures concerning the award of contracts falling
scope of Directives 2004/18/EC and
within the
2004/17/EC, cannot be sufficiently achieved by the
Member States and can therefore be better achieved at
Community level, the Community may adopt measures,
in accordance with the principle of subsidiarity as set out
In accordance with the
in Article 5 of
principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary in
order to achieve that objective, while respecting the
principle of the procedural autonomy of the Member
States.

the Treaty.

the Interinstitutional
In accordance with point 34 of
law-making (2), Member States
Agreement on better
should draw up, for themselves and in the interests of
the Community, their own tables illustrating the corre-
lation between this Directive and the transposition
measures, and make them public.

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
an effective remedy and to a fair hearing, in accordance
with the first and second subparagraphs of Article 47 of
the Charter.

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 89/665/EEC

Directive 89/665/EEC is hereby amended as follows:

1. Articles 1 and 2 shall be replaced by the following:

‘Article 1

Scope and availability of review procedures

to contracts

This Directive applies

1.
referred to in
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 contracts (*), unless such
contracts are excluded in accordance with Articles 10 to 18
of that Directive.

Contracts within the meaning of this Directive include public
contracts, framework agreements, public works concessions
and dynamic purchasing systems.

Member States shall take the measures necessary to ensure
that, as regards contracts falling within the scope of Directive
2004/18/EC, decisions taken by the 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 of this Directive, on the grounds that such decisions
have infringed Community law in the field of public
procurement or national rules transposing that law.

2. Member States shall ensure that there is no discrimi-
nation between undertakings claiming harm in the context
of a procedure for the award of a contract as a result of the
distinction made by this Directive between national rules
implementing Community law and other national rules.

(37) Directives 89/665/EEC and 92/13/EEC should therefore

be amended accordingly,

(1) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(2) OJ C 321, 31.12.2003, p. 1.

3. 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 contract and who has
been or risks being harmed by an alleged infringement.

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4. Member States may require that the person wishing to
use a review procedure has notified the contracting authority
of the alleged infringement and of his intention to seek
review, provided that
the standstill
period in accordance with Article 2a(2) or any other time
limits for applying for review in accordance with Article 2c.

this does not affect

(c) award damages to persons harmed by an infringement.

The powers specified in paragraph 1 and Articles 2d
2.
and 2e may be conferred on separate bodies responsible for
different aspects of the review procedure.

5. Member States may require that the person concerned
first seek review with the contracting authority. In that case,
Member States shall ensure that the submission of such an
application for review results in immediate suspension of the
possibility to conclude the contract.

Member States shall decide on the appropriate means of
communication,
including fax or electronic means, to be
used for the application for review provided for in the first
subparagraph.

The suspension referred to in the first subparagraph shall not
end before the expiry of a period of at least 10 calendar days
with effect from the day following the date on which the
contracting authority has sent a reply if fax or electronic
means are used, or, if other means of communication are
used, before the expiry of either at least 15 calendar days
with effect from the day following the date on which the
contracting authority has sent a reply, or at least 10 calendar
days with effect from the day following the date of the
receipt of a reply.

Article 2

Requirements for review procedures

1. Member States shall ensure that the measures taken
concerning the review procedures specified in Article 1
include provision for powers to:

(a)

take, at the earliest opportunity and by way of inter-
locutory procedures, interim measures with the aim of
correcting the alleged infringement or preventing further
damage to the interests concerned, including measures to
suspend or to ensure the suspension of the procedure for
the award of a public contract or the implementation of
any decision taken by the contracting authority;

3. When a body of first instance, which is independent of
the contracting authority, reviews a contract award decision,
Member States shall ensure that the contracting authority
cannot conclude the contract before the review body has
made a decision on the application either
interim
measures or
review. The suspension shall end no
earlier than the expiry of the standstill period referred to
in Article 2a(2) and Article 2d(4) and (5).

for

for

Except where provided for in paragraph 3 and Article
review procedures need not necessarily have an
award
on

4.
1(5),
automatic
suspensive
procedures to which they relate.

contract

effect

the

5. Member States may provide that the body responsible
for review procedures may take into account the probable
consequences of interim measures for all interests likely to
be harmed, as well as the public interest, and may decide not
to grant such measures when their negative consequences
could exceed their benefits.

A decision not to grant interim measures shall not prejudice
any other claim of the person seeking such measures.

6. Member States may provide that where damages are
claimed on the grounds that a decision was taken unlawfully,
the contested decision must first be set aside by a body
having the necessary powers.

Except where provided for in Articles 2d to 2f, the
7.
referred to in
effects of
paragraph 1 of
this Article on a contract concluded
subsequent to its award shall be determined by national law.

the powers

exercise of

the

(b) either set aside or ensure the setting aside of decisions
taken unlawfully,
including the removal of discrimi-
natory technical, economic or financial specifications in
the invitation to tender, the contract documents or in
any other document
relating to the contract award
procedure;

Furthermore, except where a decision must be set aside prior
to the award of damages, a Member State may provide that,
after the conclusion of a contract in accordance with Article
1(5), paragraph 3 of this Article or Articles 2a to 2f, the
powers of the body responsible for review procedures shall
be limited to awarding damages to any person harmed by an
infringement.

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8. Member States shall ensure that decisions taken by
bodies responsible for review procedures can be effectively
enforced.

effect from the day following the date of the receipt of the
contract award decision.

9. Where bodies responsible for review procedures are
not judicial in character, written reasons for their decisions
shall always be given. Furthermore, in such a case, provision
must be made to guarantee procedures whereby any
allegedly illegal measure taken by the review body or any
alleged defect in the exercise of the powers conferred on it
can be the subject of judicial review or review by another
body which is a court or tribunal within the meaning of
Article 234 of
the Treaty and independent of both the
contracting authority and the review body.

Tenderers shall be deemed to be concerned if they have not
yet been definitively excluded. An exclusion is definitive if it
has been notified to the tenderers concerned and has either
been considered lawful by an independent review body or
can no longer be subject to a review procedure.

shall be deemed to be

Candidates
the
contracting authority has not made available information
about the rejection of their application before the notifi-
cation of
the contract award decision to the tenderers
concerned.

concerned if

their appointment,

The members of
such an independent body shall be
appointed and leave office under the same conditions as
members of the judiciary as regards the authority responsible
their period of office, and their
for
removal. At least the President of this independent body
shall have the same legal and professional qualifications as
members of the judiciary. The independent body shall take
its decisions following a procedure in which both sides are
heard, and these decisions shall, by means determined by
each Member State, be legally binding.

The communication of the award decision to each tenderer
and candidate concerned shall be accompanied by the
following:

— a summary of the relevant reasons as set out in Article
41(2) of Directive 2004/18/EC, subject to the provisions
of Article 41(3) of that Directive, and,

___________
(*) OJ L 134, 30.4.2004, p. 114. Directive as last amended
363,

2006/97/EC (OJ

L

by Council Directive
20.12.2006, p. 107).’;

— a precise

statement of

the

exact

applicable pursuant to the provisions of national
transposing this paragraph.

standstill period
law

2. the following articles shall be inserted:

Article 2b

‘Article 2a

Standstill period

shall ensure that

The Member States

1.
the persons
referred to in Article 1(3) have sufficient time for effective
review of the contract award decisions taken by contracting
authorities, by adopting the necessary provisions respecting
the minimum conditions set out in paragraph 2 of this
Article and in Article 2c.

Derogations from the standstill period

Member States may provide that the periods referred to in
Article 2a(2) of this Directive do not apply in the following
cases:

(a)

if Directive 2004/18/EC does not require prior publi-
cation of a contract notice in the Official Journal of the
European Union;

2.
A contract may not be concluded following the
decision to award a contract falling within the scope of
Directive 2004/18/EC before the expiry of a period of at
least 10 calendar days with effect from the day following
the date on which the contract award decision is sent to the
fax or electronic
tenderers and candidates concerned if
means are used or,
if other means of communication are
used, before the expiry of a period of either at least 15
calendar days with effect from the day following the date
on which the contract award decision is sent to the tenderers
and candidates concerned or at least 10 calendar days with

(b) if the only tenderer concerned within the meaning of
the one who is
this Directive is
Article 2a(2) of
awarded the contract and there are no candidates
concerned;

(c)

in the case of a contract based on a framework
agreement as provided for in Article 32 of Directive
2004/18/EC and in the case of a specific contract
based on a dynamic purchasing system as provided for
in Article 33 of that Directive.

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If this derogation is invoked, Member States shall ensure that
the contract is ineffective in accordance with Articles 2d and
2f of this Directive where:

— there is an infringement of the second indent of the
second subparagraph of Article 32(4) or of Article
33(5) or (6) of Directive 2004/18/EC, and,

(b) in case of an infringement of Article 1(5), Article 2(3) or
Article 2a(2) of this Directive,
if this infringement has
deprived the tenderer applying for review of the possi-
bility to pursue pre-contractual remedies where such an
is combined with an infringement of
infringement
Directive 2004/18/EC, if that infringement has affected
the chances of the tenderer applying for a review to
obtain the contract;

— the contract value is estimated to be equal to or to
exceed the thresholds set out in Article 7 of Directive
2004/18/EC.

(c)

in the cases referred to in the second subparagraph of
Article 2b(c) of this Directive,
if Member States have
invoked the derogation from the standstill period for
contracts based on a framework agreement and a
dynamic purchasing system.

Article 2c

Time limits for applying for review

least 10 calendar days with effect

Where a Member State provides that any application for
review of a contracting authority's decision taken in the
context of, or in relation to, 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 shall
be at
from the day
following the date on which the contracting authority's
decision is sent to the tenderer or candidate if fax or elec-
tronic means are used or, if other means of communication
are used, this period shall be either at least 15 calendar days
with effect from the day following the date on which the
contracting authority's decision is sent to the tenderer or
candidate or at least 10 calendar days with effect from the
the receipt of the contracting
day following the date of
authority's decision. The communication of the contracting
authority's decision to each tenderer or candidate shall be
accompanied by a summary of the relevant reasons. In the
case of an application for
review concerning decisions
referred to in Article 2(1)(b) of this Directive that are not
subject to a specific notification, the time period shall be at
least 10 calendar days from the date of the publication of
the decision concerned.

The consequences of a contract being considered inef-

2.
fective shall be provided for by national law.

National law may provide for the retroactive cancellation of
all contractual obligations or limit the scope of the cancel-
lation to those obligations which still have to be performed.
In the latter case, Member States shall provide for the appli-
cation of other penalties within the meaning of Article 2e(2).

3. Member States may provide that the review body inde-
pendent of the contracting authority may not consider a
ineffective, even though it has been awarded
contract
illegally on the grounds mentioned in paragraph 1,
if the
review body finds, after having examined all relevant aspects,
that overriding reasons relating to a general interest require
that the effects of the contract should be maintained. In this
case, Member States shall provide for alternative penalties
within the meaning of Article 2e(2), which shall be applied
instead.

Article 2d

Ineffectiveness

Economic interests in the effectiveness of the contract may
only be considered as overriding reasons if in exceptional
circumstances ineffectiveness would lead to disproportionate
consequences.

shall

ensure

1. Member States
is
considered ineffective by a review body independent of the
contracting authority or that its ineffectiveness is the result
of a decision of such a review body in any of the following
cases:

contract

that

a

(a)

if
the contracting authority has awarded a contract
without prior publication of a contract notice in the
Official Journal of the European Union without this being
permissible in accordance with Directive 2004/18/EC;

However, economic interests directly linked to the contract
concerned shall not constitute overriding reasons relating to
a general interest. Economic interests directly linked to the
contract include, inter alia, the costs resulting from the delay
in the execution of the contract, the costs resulting from the
launching of a new procurement procedure,
the costs
resulting from the
economic operator
performing the contract and the costs of legal obligations
resulting from the ineffectiveness.

change of

the

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The Member States shall provide that paragraph 1(a) of

4.
this Article does not apply where:

having assessed all relevant aspects, whether the contract
should be considered ineffective or whether alternative
penalties should be imposed.

— the contracting authority considers that the award of a
contract without prior publication of a contract notice in
the Official Journal of the European Union is permissible in
accordance with Directive 2004/18/EC,

— the contracting authority has published in the Official
Journal of
the European Union a notice as described in
Article 3a of this Directive expressing its intention to
conclude the contract, and,

— the contract has not been concluded before the expiry of
a period of at least 10 calendar days with effect from the
day following the date of the publication of this notice.

The Member States shall provide that paragraph 1(c) of

5.
this Article does not apply where:

Alternative penalties must be effective, proportionate

2.
and dissuasive. Alternative penalties shall be:

— the imposition of fines on the contracting authority; or,

— the shortening of the duration of the contract.

Member States may confer on the review body broad
factors,
discretion to take into account all
the
including
the
behaviour of
in the cases
referred to in Article 2d(2),
to which the
contract remains in force.

the contracting authority and,

infringement,

the relevant

seriousness

the extent

the

of

— the contracting authority considers that the award of a
contract is in accordance with the second indent of the
second subparagraph of Article 32(4) or with Article
33(5) and (6) of Directive 2004/18/EC,

Article 2f

Time limits

The award of damages does not constitute an appropriate
penalty for the purposes of this paragraph.

— the contracting authority has sent a contract award
decision,
as
together with a summary of
referred to in the first indent of the fourth subparagraph
of Article 2a(2) of
to the tenderers
concerned, and,

this Directive,

reasons

1. Member States may provide that the application for
review in accordance with Article 2d(1) must be made:

(a) before the expiry of at least 30 calendar days with effect

from the day following the date on which:

to the tenderers concerned if

— the contract has not been concluded before the expiry of
a period of at least 10 calendar days with effect from the
day following the date on which the contract award
decision is sent
fax or
if other means of com-
electronic means are used or,
munications are used, before the expiry of a period of
either at least 15 calendar days with effect from the day
following the date on which the contract award decision
is sent to the tenderers concerned or at least 10 calendar
days with effect from the day following the date of the
receipt of the contract award decision.

Article 2e

Infringements of this Directive and alternative penalties

In the case of an infringement of Article 1(5), Article
1.
2(3) or Article 2a(2) which is not covered by Article
2d(1)(b), Member States shall provide for ineffectiveness in
accordance with Article 2d(1)
for alternative
penalties. Member States may provide that the review body
independent of the contracting authority shall decide, after

to (3), or

— the contracting authority published a contract award
notice in accordance with Articles 35(4), 36 and 37
of Directive 2004/18/EC, provided that this notice
the
of
includes
contracting authority to award the contract without
prior publication of a contract notice in the Official
Journal of the European Union, or

justification

decision

the

of

the

concerned of

conclusion of

— the contracting authority informed the tenderers and
candidates
the
contract, provided that this information contains a
in
reasons as set out
summary of
Article 41(2) of Directive 2004/18/EC, subject
to
the provisions of Article 41(3) of
that Directive.
This option also applies to the cases referred to in
Article 2b(c) of this Directive;

the relevant

(b) and in any case before the expiry of a period of at least
six months with effect from the day following the date
of the conclusion of the contract.

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In all other cases, including applications for a review in
2.
accordance with Article 2e(1), the time limits for the appli-
cation for a review shall be determined by national
law,
subject to the provisions of Article 2c.’;

confirm that the alleged infringement has been corrected
or include a reasoned submission as to why no correction
has been made.’;

3. Article 3 shall be replaced by the following:

4. the following articles shall be inserted:

‘Article 3

Corrective mechanism

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

that a serious

it considers

The Commission shall notify the Member State
2.
concerned of the reasons which have led it to conclude
that a serious
infringement has been committed and
request its correction by appropriate means.

3. Within 21 calendar days of receipt of the notification
referred to in paragraph 2, the Member State concerned shall
communicate to the Commission:

‘Article 3a

Content of a notice for voluntary ex ante transparency

The notice referred to in the second indent of Article 2d(4),
the format of which shall be adopted by the Commission in
accordance with the advisory procedure referred to in Article
3b(2), shall contain the following information:

(a)

the name
authority;

and contact details of

the

contracting

(b) a description of the object of the contract;

(c) a justification of the decision of the contracting authority
to award the contract without prior publication of a
contract notice in the Official
the European
Union;

Journal of

(a)

confirmation that

its
corrected;

the

infringement has been

(d) the name and contact details of the economic operator
in favour of whom a contract award decision has been
taken; and

(b) a reasoned submission as to why no correction has been

made; or

(e) where appropriate, any other information deemed useful

by the contracting authority.

(c) a notice to the effect that the contract award procedure
has been suspended either by the contracting authority
the powers
on its own initiative or on the basis of
specified in Article 2(1)(a).

Article 3b

Committee procedure

to
A reasoned submission communicated pursuant
4.
paragraph 3(b) may rely among other matters on the fact
that the alleged infringement is already the subject of judicial
or other review proceedings or of a review as referred to in
Article 2(9). In such a case, the Member State shall inform
the Commission of the result of those proceedings as soon
as it becomes known.

5. Where notice has been given that a contract award
accordance with
in
procedure
has
shall notify
paragraph 3(c),
the
State
lifted or another
Commission when the suspension is
contract procedure relating in whole or in part
to the
is begun. That notification shall
same

been suspended
the Member

subject matter

1.
The Commission shall be assisted by the Advisory
Committee for Public Contracts set up by Article 1 of
Council Decision 71/306/EEC of 26 July 1971 (*)
(here-
inafter referred to as the Committee).

2. Where reference is made to this paragraph, Articles 3
and 7 of Council Decision 1999/468/EC of 28 June 1999
laying down the procedures for the exercise of implementing
powers conferred on the Commission (**) shall apply, having
regard to the provisions of Article 8 thereof.

___________
(*) OJ L 185, 16.8.1971, p. 15. Decision as amended by
Decision 77/63/EEC (OJ L 13, 15.1.1977, p. 15).
(**) OJ L 184, 17.7.1999, p. 23. Decision as amended by
Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).’;

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Official Journal of the European Union

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5. Article 4 shall be replaced by the following:

‘Article 4

Implementation

1.
in
The Commission may request the Member States,
consultation with the Committee, to provide it with infor-
mation on the operation of national review procedures.

2. Member States shall communicate to the Commission
on an annual basis the text of all decisions, together with the
reasons therefor, taken by their review bodies in accordance
with Article 2d(3).’;

6. the following article shall be inserted:

‘Article 4a

Review

2004/17/EC, 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
of this Directive, on the grounds that such decisions have
infringed Community law in the field of procurement or
national rules transposing that law.

2. Member States shall ensure that there is no discrimi-
nation between undertakings likely to make a claim in
respect of harm in the context of a procedure for the
award of a contract as a result of the distinction made by
this Directive
implementing
between
Community law and other national rules.

national

rules

3. 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 contract and who has
been or risks being harmed by an alleged infringement.

No later than 20 December 2012, the Commission shall
review the implementation of this Directive and report to
the European Parliament and to the Council on its effec-
tiveness, and in particular on the effectiveness of the alter-
native penalties and time limits.’.

4. Member States may require that the person wishing to
use a review procedure has notified the contracting entity of
the alleged infringement and of his intention to seek review,
provided that this does not affect the standstill period in
accordance with Article 2a(2) or any other time limits for
applying for review in accordance with Article 2c.

Article 2

Amendments to Directive 92/13/EEC

Directive 92/13/EEC is hereby amended as follows:

1. Article 1 shall be replaced by the following:

5. Member States may require that the person concerned
first seek review with the contracting entity. In that case,
Member States shall ensure that the submission of such an
application for review results in immediate suspension of the
possibility to conclude the contract.

‘Article 1

Scope and availability of review procedures

Member States shall decide on the appropriate means of
communication,
including fax or electronic means, to be
used for the application for review provided for in the first
subparagraph.

to contracts

This Directive applies

of 31 March 2004 coordinating

1.
referred to in
Directive 2004/17/EC of the European Parliament and of
the Council
the
procurement procedures of entities operating in the water,
energy, transport and postal services sectors (*), unless such
contracts are excluded in accordance with Article 5(2),
Articles 18 to 26, Articles 29 and 30 or Article 62 of
that Directive.

Contracts within the meaning of
this Directive include
supply, works and service contracts, framework agreements
and dynamic purchasing systems.

Member States shall take the measures necessary to ensure
that, as regards contracts falling within the scope of Directive

The suspension referred to in the first subparagraph shall not
end before the expiry of a period of at least 10 calendar days
with effect from the day following the date on which the
contracting entity has sent a reply if fax or electronic means
are used, or,
if other means of communication are used,
before the expiry of a period of either at least 15 calendar
days with effect from the day following the date on which
the contracting entity has sent a reply or at least 10 calendar
days with effect from the day following the date of the
receipt of a reply.

___________
(*) OJ L 134, 30.4.2004, p. 1. Directive as last amended by
Council Directive 2006/97/EC (OJ L 363, 20.12.2006,
p. 107).’;

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2. Article 2 shall be amended as follows:

(a)

the title ‘Requirements for review procedures’ shall be
inserted;

(b) paragraphs 2 to 4 shall be replaced by the following:

‘2.
The powers specified in paragraph 1 and Articles
2d and 2e may be conferred on separate bodies
responsible for different aspects of the review procedure.

first

instance, which is inde-
3. When a body of
the contracting entity, reviews a contract
pendent of
award decision, Member States shall ensure that
the
contracting entity cannot conclude the contract before
the review body has made a decision on the application
either for interim measures or for review. The suspension
shall end no earlier than the expiry of the standstill
period referred to in Article 2a(2) and Article 2d(4)
and (5).

Except where provided for in paragraph 3 and
3a.
Article 1(5),
review procedures need not necessarily
have an automatic suspensive effect on the contract
award procedures to which they relate.

for

States may provide

that
review procedures may

the body
4. Member
responsible
into
take
account the probable consequences of interim measures
for all interests likely to be harmed, as well as the public
interest, and may decide not to grant such measures
when their negative consequences could exceed their
benefits.

interim measures shall not
A decision not
prejudice any other claim of the person seeking such
measures.’;

to grant

(c) paragraph 6 shall be replaced by the following:

the exercise of

Except where provided for in Articles 2d to 2f, the
the powers referred to in
this Article on a contract concluded
award shall be determined by

to its

‘6.
effects of
paragraph 1 of
subsequent
national law.

Furthermore, except where a decision must be set aside
prior to the award of damages, a Member State may

the conclusion of a contract

in
provide that, after
accordance with Article 1(5), paragraph 3 of
this
Article or Articles 2a to 2f, the powers of the body
responsible for review procedures shall be limited to
to any person harmed by an
awarding damages
infringement.’;

(d) in the first subparagraph of paragraph 9,

the words
‘court or tribunal within the meaning of Article 177 of
the Treaty’ shall be replaced by the words ‘court or
tribunal within the meaning of Article 234 of the Treaty’;

3. the following articles shall be inserted:

‘Article 2a

Standstill period

shall ensure that

The Member States

1.
the persons
referred to in Article 1(3) have sufficient time for effective
review of the contract award decisions taken by contracting
entities, by adopting the necessary provisions respecting the
minimum conditions set out in paragraph 2 of this Article
and in Article 2c.

2.
A contract may not be concluded following the
decision to award a contract falling within the scope of
Directive 2004/17/EC before the expiry of a period of at
least 10 calendar days with effect from the day following
the date on which the contract award decision is sent to the
tenderers and candidates concerned if
fax or electronic
if other means of communication are
means are used or,
used, before the expiry of a period of either at least 15
calendar days with effect from the day following the date
on which the contract award decision is sent to the tenderers
and candidates concerned or at least 10 calendar days with
effect from the day following the date of the receipt of the
contract award decision.

Tenderers shall be deemed to be concerned if they have not
yet been definitively excluded. An exclusion is definitive if it
has been notified to the tenderers concerned and has either
been considered lawful by an independent review body or
can no longer be subject to a review procedure.

shall be deemed to be

Candidates
the
contracting entity has not made available information
about the rejection of their application before the notifi-
cation of
the contract award decision to the tenderers
concerned.

concerned if

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The communication of the award decision to each tenderer
and candidate concerned shall be accompanied by the
following:

— a summary of the relevant reasons as set out in Article

49(2) of Directive 2004/17/EC, and,

— a precise

statement of

the

exact

applicable pursuant to the provisions of national
transposing this paragraph.

standstill period
law

Article 2b

Derogations from the standstill period

Member States may provide that the periods referred to in
Article 2a(2) of this Directive do not apply in the following
cases:

(a)

if Directive 2004/17/EC does not require prior publi-
cation of a notice in the Official Journal of the European
Union;

(b) if the only tenderer concerned within the meaning of
Article 2a(2) of
the one who is
this Directive is
awarded the contract and there are no candidates
concerned;

(c)

in the case of specific contracts based on a dynamic
purchasing system as provided for in Article 15 of
Directive 2004/17/EC.

If this derogation is invoked, Member States shall ensure that
the contract is ineffective in accordance with Articles 2d and
2f of this Directive where:

— there is an infringement of Article 15(5) or

(6) of

Directive 2004/17/EC, and,

— the contract value is estimated to be equal to or to
exceed the thresholds set out in Article 16 of Directive
2004/17/EC.

Article 2c

Time limits for applying for review

least 10 calendar days with effect

from the day
be at
following the date on which the
contracting entity's
decision is sent to the tenderer or candidate if fax or elec-
tronic means are used or, if other means of communication
are used, this period shall be either at least 15 calendar days
with effect from the day following the date on which the
contracting entity's decision is sent
to the tenderer or
candidate or at least 10 calendar days with effect from the
day following the date of receipt of the contracting entity's
the contracting entity's
decision. The communication of
decision to each tenderer or candidate shall be accompanied
by a summary of the relevant reasons. In the case of an
application for a review concerning decisions referred to in
Article 2(1)(b) of this Directive that are not subject to a
specific notification, the time period shall be at least 10
calendar days from the date of
the
decision concerned.

the publication of

Article 2d

Ineffectiveness

shall

1. Member States
is
considered ineffective by a review body independent of the
contracting entity or that its ineffectiveness is the result of a
decision of such a review body in any of the following cases:

contract

ensure

that

a

(a)

if the contracting entity has awarded a contract without
prior publication of a notice in the Official Journal of the
European Union without
in
accordance with Directive 2004/17/EC;

this being permissible

(b) in case of an infringement of Article 1(5), Article 2(3) or
Article 2a(2) of this Directive,
if this infringement has
deprived the tenderer applying for review of the possi-
bility to pursue pre-contractual remedies where such an
is combined with an infringement of
infringement
Directive 2004/17/EC, if that infringement has affected
the chances of the tenderer applying for a review to
obtain the contract;

(c)

in cases referred to in the second subparagraph of Article
2b(c) of this Directive, if Member States have invoked the
derogation from the standstill period for contracts based
on a dynamic purchasing system.

The consequences of a contract being considered inef-

2.
fective shall be provided for by national law.

Where a Member State provides that any application for
review of a contracting entity's decision taken in the
context of, or in relation to, 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 shall

National law may provide for the retroactive cancellation of
all contractual obligations or limit the scope of the cancel-
lation to those obligations which still have to be performed.
In the latter case, Member States shall provide for the appli-
cation of other penalties within the meaning of Article 2e(2).

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3. Member States may provide that the review body inde-
pendent of
the contracting entity may not consider a
ineffective, even though it has been awarded
contract
illegally on the grounds mentioned in paragraph 1,
if the
review body finds, after having examined all relevant aspects,
that overriding reasons relating to a general interest require
that the effects of the contract should be maintained. In this
case, Member States shall provide for alternative penalties
within the meaning of Article 2e(2), which shall be applied
instead.

Economic interests in the effectiveness of the contract may
only be considered as overriding reasons if in exceptional
circumstances ineffectiveness would lead to disproportionate
consequences.

However, economic interests directly linked to the contract
concerned shall not constitute overriding reasons relating to
a general interest. Economic interests directly linked to the
contract include, inter alia, the costs resulting from the delay
in the execution of the contract, the costs resulting from the
launching of a new procurement procedure,
the costs
resulting from the
economic operator
performing the contract and the costs of legal obligations
resulting from the ineffectiveness.

change of

the

The Member States shall provide that paragraph 1(a) of

4.
this Article does not apply where:

— the contracting entity considers that

the award of a
contract without prior publication of a notice in the
Official
the European Union is permissible in
accordance with Directive 2004/17/EC,

Journal of

— the contracting entity has published in the Official Journal
of the European Union a notice as described in Article 3a
of this Directive expressing its intention to conclude the
contract, and,

— the contract has not been concluded before the expiry of
a period of at least 10 calendar days with effect from the
day following the date of the publication of this notice.

The Member States shall provide that paragraph 1(c) of

5.
this Article does not apply where:

— the contracting entity has sent a contract award decision,
together with a summary of reasons as referred to in the
first indent of the fourth subparagraph of Article 2a(2) of
this Directive, to the tenderers concerned, and,

— the contract has not been concluded before the expiry of
a period of at least 10 calendar days with effect from the
day following the date on which the contract award
decision is sent to the tenderers concerned if
fax or
electronic means are used or,
if other means of com-
munications are used, before the expiry of a period of
either at least 15 calendar days with effect from the day
following the date on which the contract award decision
is sent to the tenderers concerned or at least 10 calendar
days with effect from the day following the date of the
receipt of the contract award decision.

Article 2e

Infringements of this Directive and alternative penalties

1.
In case of an infringement of Article 1(5), Article 2(3)
or Article 2a(2) not covered by Article 2d(1)(b), Member
States shall provide for ineffectiveness in accordance with
Article 2d(1) to (3), or for alternative penalties. Member
States may provide that the review body independent of
the contracting entity shall decide, after having assessed all
relevant aspects, whether the contract should be considered
ineffective or whether
should be
imposed.

alternative penalties

Alternative penalties must be effective, proportionate

2.
and dissuasive. Alternative penalties shall be:

— the imposition of fines on the contracting entity; or,

— the shortening of the duration of the contract.

Member States may confer on the review body broad
factors,
discretion to take into account all
the
including
the
the
in the cases
behaviour of
referred to in Article 2d(2),
to which the
contract remains in force.

the contracting entity and,
the extent

infringement,

the relevant

seriousness

of

— the contracting entity considers that

the award of a
contract is in accordance with Article 15(5) and (6) of
Directive 2004/17/EC,

The award of damages does not constitute an appropriate
penalty for the purposes of this paragraph.

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Article 2f

Time limits

1. Member States may provide that the application for
review in accordance with Article 2d(1) must be made:

(a) before the expiry of at least 30 calendar days with effect

from the day following the date on which:

— the contracting entity published a contract award
notice in accordance with Articles 43 and 44 of
this notice
Directive 2004/17/EC, provided that
includes
the
the justification of
contracting entity to award the contract without
prior publication of a notice in the Official Journal
of the European Union, or

the decision of

concerned of

— the contracting entity informed the tenderers and
the
candidates
contract, provided that this information contains a
summary of
in
Article 49(2) of Directive 2004/17/EC. This option
also applies to the cases referred to in Article 2b(c) of
this Directive;

reasons as set out

conclusion of

the relevant

the

(b) and in any case before the expiry of a period of at least
six months with effect from the day following the date
of the conclusion of the contract.

(d) the name and contact details of the economic operator
in favour of whom a contract award decision has been
taken; and

(e) where appropriate, any other information deemed useful

by the contracting entity.

Article 3b

Committee procedure

1.
The Commission shall be assisted by the Advisory
Committee for Public Contracts set up by Article 1 of
Council Decision 71/306/EEC of 26 July 1971 (*)
(here-
inafter referred to as the Committee).

2. Where reference is made to this paragraph, Articles 3
and 7 of Council Decision 1999/468/EC of 28 June 1999
laying down the procedures for the exercise of implementing
powers conferred on the Commission (**) shall apply, having
regard to the provisions of Article 8 thereof.

___________
(*) OJ L 185, 16.8.1971, p. 15. Decision as amended by
Decision 77/63/EEC (OJ L 13, 15.1.1977, p. 15).
(**) OJ L 184, 17.7.1999, p. 23. Decision as amended by
Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).’;

5. Article 8 shall be replaced by the following:

In all other cases, including applications for a review in
2.
accordance with Article 2e(1), the time limits for the appli-
cation for a review shall be determined by national
law,
subject to the provisions of Article 2c.’;

‘Article 8

Corrective mechanism

4. Articles 3 to 7 shall be replaced by the following:

‘Article 3a

Content of a notice for voluntary ex ante transparency

The notice referred to in the second indent of Article 2d(4),
the format of which shall be adopted by the Commission in
accordance with the advisory procedure referred to in Article
3b(2), shall contain the following information:

(a)

the name and contact details of the contracting entity;

(b) a description of the object of the contract;

it considers

The Commission may invoke the procedure provided
1.
for in paragraphs 2 to 5 when, prior to a contract being
concluded,
infringement of
Community law in the field of procurement has been
committed during a
falling
within the scope of Directive 2004/17/EC, or in relation
to Article 27(a) of that Directive in the case of contracting
entities to which that provision applies.

award procedure

that a serious

contract

2.
The Commission shall notify the Member State
concerned of the reasons which have led it to conclude
that a serious
infringement has been committed and
request its correction by appropriate means.

3. Within 21 calendar days of receipt of the notification
referred to in paragraph 2, the Member State concerned shall
communicate to the Commission:

(c) a justification of the decision of the contracting entity to
award the contract without prior publication of a notice
in the Official Journal of the European Union;

(a)

confirmation that

its
corrected;

the

infringement has been

L 335/46

EN

Official Journal of the European Union

20.12.2007

(b) a reasoned submission as to why no correction has been

made; or

the European Parliament and to the Council on its effec-
tiveness, and in particular on the effectiveness of the alter-
native penalties and time limits.’;

(c) a notice to the effect that the contract award procedure
has been suspended either by the contracting entity on
its own initiative or on the basis of the powers specified
in Article 2(1)(a).

4.
to
A reasoned submission communicated pursuant
paragraph 3(b) may rely among other matters on the fact
that the alleged infringement is already the subject of judicial
review proceedings or of a review as referred to in Article
inform the
2(9).
Commission of the result of those proceedings as soon as
it becomes known.

In such a case, the Member State shall

5. Where notice has been given that a contract award
been suspended
procedure
accordance with
has
in
paragraph 3(c),
the Member State concerned shall notify
the Commission when the suspension is lifted or another
contract procedure relating in whole or in part
to the
same subject matter is begun. That new notification shall
confirm that the alleged infringement has been corrected
or include a reasoned submission as to why no correction
has been made.’;

6. Articles 9 to 12 shall be replaced by the following:

‘Article 12

Implementation

1.
in
The Commission may request the Member States,
consultation with the Committee, to provide it with infor-
mation on the operation of national review procedures.

2. Member States shall communicate to the Commission
on an annual basis the text of all decisions, together with the
reasons therefor, taken by their review bodies in accordance
with Article 2d(3).

Article 12a

Review

No later than 20 December 2012, the Commission shall
review the implementation of this Directive and report to

7. the Annex shall be deleted.

Article 3

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 20 December 2009. They shall forthwith com-
municate to the Commission the text of those provisions.

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

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 4

Entry into force

This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

Article 5

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 11 December 2007.

For the European Parliament
The President

For the Council
The President

H.-G. PÖTTERING

M. LOBO ANTUNES