COMMISSION STAFF WORKING DOCUMENT EVALUATION OF THE MODIFICATIONS INTRODUCED BY DIRECTIVE 2007/66/EC TO DIRECTIVES 89/665/EEC AND 92/13/EEC CONCERNING THE EUROPEAN FRAMEWORK FOR REMEDIES IN THE AREA OF PUBLIC PROCUREMENT/ REFIT EVALUATION Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL ON THE EFFECTIVENESS OF DIRECTIVE 89/665/EEC AND DIRECTIVE 92/13/EEC, AS MODIFIED BY DIRECTIVE 2007/66/EC, CONCERNING REVIEW PROCEDURES IN THE AREA OF PUBLIC PROCUREMENT
Date: 2017-01-24
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: administrative transparency, application of EU law, award of contract, invitation to tender, services contract, single market, supplies contract, works contract

EUROPEAN 
COMMISSION 

Brussels, 24.1.2017  
SWD(2017) 13 final 

COMMISSION STAFF WORKING DOCUMENT 

EVALUATION OF THE MODIFICATIONS INTRODUCED BY DIRECTIVE 
2007/66/EC TO DIRECTIVES 89/665/EEC AND 92/13/EEC CONCERNING THE 
EUROPEAN FRAMEWORK FOR REMEDIES IN THE AREA OF PUBLIC 
PROCUREMENT/ REFIT EVALUATION 

Accompanying the document 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

ON THE EFFECTIVENESS OF DIRECTIVE 89/665/EEC AND DIRECTIVE 
92/13/EEC, AS MODIFIED BY DIRECTIVE 2007/66/EC, CONCERNING REVIEW 
PROCEDURES IN THE AREA OF PUBLIC PROCUREMENT 

{COM(2017) 28 final} 

EN 

   EN 

 
 
 
 
  
 
TABLE OF CONTENTS  

1. 

2. 

3. 

3.1. 

3.2. 

Executive summary ...................................................................................................... 6 

Introduction ................................................................................................................. 12 

Background - The Remedies Directives ..................................................................... 14 

The founding Remedies Directives (Directives 89/665/EEC and 92/13/EEC) .......... 14 

Directive 2007/66/EC ................................................................................................. 16 

3.2.1.  Automatic debrief and ‘standstill period’ ................................................................... 17 

3.2.2.  Time limits for pre-contractual remedies ................................................................... 18 

3.2.3.  An automatic suspension ............................................................................................ 18 

3.2.4. 

Ineffectiveness ............................................................................................................ 18 

3.2.5.  Time limits for bringing an action for ineffectiveness ............................................... 20 

3.2.6.  Alternative penalties ................................................................................................... 20 

3.3. 

Other aspects related to remedies ............................................................................... 21 

3.3.1.  Costs of proceedings ................................................................................................... 21 

3.3.2.  Time-limit for the duration of the review procedures................................................. 22 

4. 

4.1. 

4.2. 

5. 

6. 

6.1. 

6.2. 

6.3. 

6.4. 

6.5. 

6.6. 

6.7. 

6.8. 

Evaluation — general aspects ..................................................................................... 22 

Intervention logic ........................................................................................................ 22 

Evaluation criteria and evaluation questions .............................................................. 23 

Methodology ............................................................................................................... 24 

Implementation — state of play ................................................................................. 25 

First instance review bodies ........................................................................................ 25 

The right to bring an action or to appear before a court ............................................. 25 

Interim measures, set aside decisions and damages ................................................... 25 

Automatic debrief and ‘standstill period’ ................................................................... 26 

Automatic suspension ................................................................................................. 27 

Ineffectiveness ............................................................................................................ 27 

Alternative penalties ................................................................................................... 29 

Time limits for review ................................................................................................ 29 

6.8.1.  Pre-contractual remedies ............................................................................................ 29 

6.8.2. 

Ineffectiveness ............................................................................................................ 29 

6.8.3.  Damages ..................................................................................................................... 29 

7. 

7.1. 

Answers to the evaluation questions ........................................................................... 30 

Effectiveness ............................................................................................................... 30 

7.1.1.  Actual usage of the provisions .................................................................................... 30 

2 

 
 
 
7.1.2.  Effectiveness in meeting the objectives ...................................................................... 33 

7.1.3.  Factors affecting the effectiveness .............................................................................. 36 

7.1.4.  Deterrent effects of the Remedies Directives ............................................................. 44 

7.1.5.  Conclusions — effectiveness: ..................................................................................... 45 

7.2. 

Efficiency .................................................................................................................... 46 

7.2.1.  Cost / benefits ............................................................................................................. 46 

7.2.2.  Overall cost/benefit relationship ................................................................................. 48 

7.2.3.  Administrative burden ................................................................................................ 49 

7.2.4.  Conclusions  — efficiency: ........................................................................................ 50 

7.3. 

Relevance .................................................................................................................... 51 

7.3.1.  Stakeholders’ views on relevance ............................................................................... 51 

7.3.2.  Actual usage of the provisions .................................................................................... 53 

7.3.3.  Conclusions —  relevance: ......................................................................................... 54 

7.4. 

7.5. 

8. 

Coherence with other policies .................................................................................... 54 

The EU added value .................................................................................................... 56 

Conclusions ................................................................................................................. 59 

Annex 1 — Case-law concerning remedies in the area of public procurement ........................ 60 

Annex 2 — Synopsis report of consultation activities .............................................................. 63 

Annex 3 — Summary of open online public consultation ........................................................ 70 

Annex 4 — Questionnaire circulated to Member States on 15/10/2015 (deadline to reply: 

23/11/2015) ................................................................................................................. 91 

Annex 5 — National measures transposing Directive 2007/66/EC .......................................... 93 

Annex 6 — Types of first instance review bodies in Member States as of March 2016 ........ 105 

Annex 7 — The use of VEAT notices by member state in the period 2009-2012 ................. 106 

Annex 8 — Implementation of alternative penalties by Member State .................................. 107 

Annex 9 — Time limits by Member State .............................................................................. 108 

Annex 10 — Length of review ............................................................................................... 111 

Annex 11 — Provisions for the costs of review procedures by Member State ...................... 114 

Annex 12 — The number of second instance decisions in 2009-2012 ................................... 115 

Annex 13 — The number of third instance decisions in 2009-2012 ...................................... 116 

Annex 14 — Frequency of remedies sought in 2009-2012 .................................................... 117 

Annex 15 — Glossary ............................................................................................................. 118 

3 

 
 
 
INDEX OF TABLES 

Table 1: Number of decisions by Member State and year in 2009-2012 ................................ 31 

Table 2: Number of decisions by Member State and year in 2012-2014 ................................ 32 

Table 3: Effectiveness of the Remedies Directives — transparency ....................................... 33 

Table 4: Effectiveness of the Remedies Directives — fairness ............................................... 33 

Table 5: Effectiveness of the Remedies Directives — openness and accessibility ................. 34 

Table  6:  Legal  practitioners’  perceptions  of  the  impact  of  the  remedies  —percentage  of 
respondents .............................................................................................................................. 35 

Table 7: The interest of economic operators v contracting authorities .................................... 42 

Table  8:  The  cost  of  review  (mean  and  median)  by  economic  operators  and  contracting 
authorities ................................................................................................................................. 47 

Table 9: The cost of review as a percentage of the size of contract ........................................ 47 

Table 10: Total cost of review according to legal practitioners, by different contract sizes ... 48 

Table 11: Standstill periods between the award decision and the conclusion of the contract (in 
days) ......................................................................................................................................... 57 

4 

 
 
 
 
INDEX OF FIGURES 

Figure 1: Intervention logic model .......................................................................................... 22 

Figure 2: The number of VEAT notice published in OJEU/TED by year 2009-2015 ............ 28 

Figure 3: The share of VEAT notices published in OJEU/TED 2009-2015 by country ......... 28 

Figure 4: Perceptions of improvement of public procurement aspects.................................... 35 

Figure  5:  Estimated  length  of  the  review  in  first  instance  (pre-contractual  remedies  2009-
2012) ........................................................................................................................................ 37 

Figure  6:  Dispersions  of  length  of  review  in  first  instance  (pre-contractual  remedies  2009-
2012) ........................................................................................................................................ 38 

Figure 7: Average length of review procedures in months (review before the ordinary courts)
.................................................................................................................................................. 39 

Figure 8: Average length of review procedures in months (review before administrative body)
.................................................................................................................................................. 40 

Figure 9: Dispersion of review fees within Member States (for contract values of EUR 250 
000, EUR 1 million, and EUR 10 million) .............................................................................. 41 

Figure  10:  Dispersion  of  review  costs  as  a  percentage  of  the  size  of  contract  (estimates  by 
Member States) ........................................................................................................................ 48 

Figure 11: Relevance of different provisions of the Remedies Directive ................................ 52 

Figure 12: Remedies Directive’s provisions from the most relevant to the least relevant ...... 52 

Figure 13: The share of responses to public consultation by participant’s category ............... 63 

5 

 
 
 
1. 

EXECUTIVE SUMMARY 

Background 
The  EU  Public  Procurement  Directives1  (the  ‘Procurement  Directives’)  regulate  award 
procedures and limited aspects of the execution of public contracts and concession contracts 
(the  ‘contracts’)  above  certain  thresholds.  Experience  in  implementing  the  Procurement 
Directives  has  shown  that  their  objectives  could  not  be  entirely  achieved  if  economic 
operators were unable to ensure that their rights were observed across the EU through access 
to  clear,  rapid  and  effective  procedures.  Directives  89/665/EEC  and  92/13/EEC2  were 
adopted to this end. 

Directives  89/665/EEC  and  92/13/EEC  were  thoroughly  amended  by  Directive  2007/66/EC 
to improve the effectiveness of review procedures concerning the award of public contracts 
and to ensure better compliance with EU law, especially at a time when breaches can still be 
corrected.  In  particular,  the  Directive  introduced  a  mandatory  standstill  period  between  the 
decision to award a contract and the conclusion of the contract in question. To help address 
problems  encountered  by  unsuccessful  tenderers  in  relation  to  the  access  of  relevant 
information  specifying  reasons  why  their  offers  were  rejected,  the  Directive  introduced  an 
automatic debrief to tenderers at the time of the contract award decision. The Directive also 
provided  for  the  sanction  of  contract  ineffectiveness  to  address  illegal  direct  awards  which 
are considered as the most serious breach of Union law in the field of public procurement. 

Directives  89/665/EEC  and  92/13/EEC  as  amended  by  Directive  2007/66/EC  require  the 
Commission to review their implementation and to report to the European Parliament and to 
the  Council  on  its  effectiveness,  and  in  particular  on  the  effectiveness  of  the  alternative 
penalties and time limits. 

In  December  2012,  the  Commission  launched  a  regulatory  fitness  and  performance 
programme  (REFIT)3  and  as  a  result  the  Commission  identified4  Directive  2007/66/EC  as 
legislation that should be evaluated in order to determine whether it contains any unnecessary 
or disproportionate regulatory burden which could be removed and, more generally, whether 
it delivers on  its  objectives and remains fit-for-purpose,  considering the major changes that 
took place for the EU Public Procurement Directives. 

1  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  sector  and 
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. Both 
Directives  were  replaced  by  Directive  2014/23/EU  of  the  European  Parliament  and  of  the  Council  of 
26 February 2014 on the award of concession contracts, Directive 2014/24/EU of the European Parliament and 
of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, and Directive 
2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities 
operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC.  
For the sake of simplification, in the text of this Staff Working Document reference is made only to Directive 
2004/17/EC and Directive 2004/18/EC since those Directives were applicable during the period on which this 
evaluation focuses. 

2  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 contracts which covers the public sector 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 
transport  and 
telecommunications sectors which covers the utilities sector. 
3 Communication ‘EU Regulatory Fitness’, COM(2012) 746. 
4 ‘Communication from the Commission — Regulatory Fitness and Performance Programme (REFIT): results 

the  procurement  procedures  of  entities  operating 

the  water,  energy, 

in 

and next steps’, COM(2013)685. 

6 

 
                                                 
For the sake of simplification, any reference in this document to the Remedies Directives is 
understood  as  referring  to  Directives  89/665/EEC  and  92/13/EEC  as  amended  by  Directive 
2007/66/EC unless indicated otherwise5. 

Findings 

This evaluation  assesses the functioning  of  the  Remedies Directives, i.e.  whether following 
their  amendments  by  Directive  2007/66/EC,  the  Remedies  Directives  have  achieved  their 
objectives and whether they are still fit-for-purpose today. The five evaluation criteria are: 
1) effectiveness; 
2) efficiency; 
3) relevance; 
4) coherence with other policies and 
5) EU added value. 

There  is  currently  no  EU-wide  monitoring  and  evaluation  system  of  remedies  action  in 
Member States  in  place. Data for remedies on public contracts above thresholds brought in 
each  Member  State  are  not  collected  in  a  structured,  coherent  and  systemic  manner  that 
would allow analysing the results obtained in an automated and easily comparable way. For 
this reason, the proper measurement or estimation of the effects of the Remedies Directives is 
difficult and requires additional actions (e.g. one-off data collection and manual analysis, as it 
was the case in the current evaluation). 

Various sources of information were used to collect evidence on the functioning and added 
value6 of the Directives', with the following conclusions: 

(i)  In terms of effectiveness, the Remedies Directives  have generally met their objectives of: 
increasing the guarantees of transparency and non-discrimination; allowing effective and 
rapid action to be taken when there is an alleged breach of the Procurement Directives; 
and providing economic operators with the assurance that all tender applications will be 
treated  equally.  The  available  data  on  the  actual  usage  of  the  provisions  added  further 
evidence  on  the  effectiveness  of  the  Directive.  In  general,  the  remedies  provided  in  the 
Remedies Directives were frequently used in most of Member States. There were around 
50  000  first  instance  decisions  across  Member  States  during  2009-2012.  The  most 
frequently  type  of  remedy  sought  is    set  aside  decision,  followed  at  distance  by  interim 
measures and the removal of discriminatory specifications. As far as the opinions of the 
stakeholders  were  concerned,  a  clear  majority  of  respondents  to  the  public  consultation 
carried out by the Commission departments considered that the Remedies Directives have 
had  a  positive  effect  on  the  public  procurement  process.  It  is  considered  to  be  more 
transparent (80.59%), fairer (79.42%), more open and accessible (77.65%) and it provides 
greater  incentive  to  comply  with  substantive  public  procurement  rules  (81.77%).  As 
confirmed  by  virtual  consensus  among  all  the  interested  parties,  Directive  2007/66/EC 
substantially  increased  the  effectiveness  of  pre-contractual  remedies  by  introducing  a 

5  Directive  2014/23/EU  introduced  further  amendments  to  Directives  89/665/EEC  and  92/13/EEC,  mainly  to 
extend their scope of application ith regard to concessions. Since its deadline for transposition elapsed on 18 
april 2016, its impact is not addressed in this evaluation.  

6 These mainly included: public stakeholders consultations, exchanges within the Commission's experts group, 
exchanges among national authorities in charge of public procurement policy, supportive Study carried out by 
an  external  contractor,  consultations  with  first  instance  administrative  review  bodies  and  judges  of  supreme 
administrative courts dealing with public procurement, overview of relevant case-law, data from the Official 
Journal  of  the  European  Union  (‘OJEU/TED’,  and  more  specifically  the  online  version  of  its  supplement 
dedicated  to  public  procurement,  Tenders  Electronic  Daily  or  TED  –  http://ted.europa.eu/),  information 
provided by representative associations and academic literature review.  

7 

 
                                                 
minimum standstill period between the notification of an award decision and the signing 
of the contract. 

Some national systems require that legal protection in public procurement procedures is 
provided at first instance by administrative review bodies rather than ordinary courts. As 
a general trend, these tend to be more effective. This is confirmed by a large majority of 
respondents  to  the  public  consultation  (74.7%)  who  considered  that  procedures  before 
ordinary  courts  take  generally  longer  and  result  in  lower  standards  of  adjudication  than 
the procedures before specialised administrative review bodies.   

In most cases, the costs of review procedures, albeit very divergent across Member States, 
do not seem to have decisive dissuasive effect on the access to remedies. Moreover, the 
Remedies  Directives  are  also  well  balanced  in  addressing  the  interest  of  all  parties 
concerned. In particular, 57.06% of respondents to the public consultation considered that 
the  Directives  evenly  balance  the  interest  of  economic  operators  in  ensuring  the 
effectiveness  of  public  procurement  law  and  the  interest  of  contracting  authorities  in 
limiting frivolous litigation. As a final point, the Remedies Directives are also effective as 
a deterrent to non-compliant behaviour in the area of public procurement.  

The Remedies Directives require the Commission in its report to the European Parliament 
and to the Council to pay particular attention to the effectiveness of alternative penalties 
and  time  limits.  The  evaluation  has  revealed  that  alternative  penalties  are  sporadically 
used  in  Member  States  and  were  considered  by  respondents  to  the  online  public 
consultation (carried out by the Commission departments) and by some Member States to 
be  the  least  relevant  remedy.  Nonetheless,  views  were  expressed  that  all  remedies 
provided  for  in  the  Remedies  Directives  contribute  to  their  deterrent  effect  and  provide 
for  a  comprehensive  and  effective  system  for  sanctioning  irregularities  in  public 
procurement. Concerning time limits, no specific evidence was gathered in the context of 
the  evaluation  that  would  demonstrate  that  time  limits  that  follow  the  structure  of  the 
Remedies Directives are either too long and cause undue delays in the public procurement 
process or too short and thereby do not allow economic operators to enforce their rights.  

The  evaluation  revealed  that  certain  aspects  of  the  Remedies  Directives  could  be  made 
clearer.  This  is  confirmed  by  the  contributions  received.  This  applies,  for  example,  to 
matters  such  as  the  interplay  between  the  Remedies  Directives  and  the  2014  legislative 
package on public procurement, and the development of criteria to be applied to lift the 
automatic  suspension  of  the  conclusion  of  the  contract  following  the  lodging  of  a  legal 
action.  

The evaluation also made it possible to identify problems that persist at national level. In 
particular,  various  stakeholders  confirmed  in  the  context  of  the  public  consultation  that 
problems  identified  are  rooted  either  in  national  legislation  beyond  the  Remedies 
Directives or in national practices, and not in the Remedies Directives.  

Finally, the Commission also recognises that in most Member States the information on 
national remedies systems is not collected in a structured manner, making the analysis of 
the  performance  of  the  Directives  extremely  difficult.  In  addition,  it  is  rarely  used  for 
policymaking  purposes  (for  example,  identification  of  resources  needed  or  abusive 
complaints; consistency of decisions based on effective searching tools; identification of 
contracting  authorities/entities  against  which  successful  complaints  are  lodged  most 
often;  and  identification  of  the  aspects  of  procurement  procedures  that  are  appealed 
successfully).  

8 

 
(ii) In terms of efficiency, the Remedies Directives provide overall benefits in line with the 
intended  impacts,  both  direct  and  indirect.  There  are  clear  indications  that  the  benefits 
achieved through the Directives outweigh their costs.  The costs to contracting authorities 
and  suppliers  of  bringing  forward  or  defending  a  review  case  (including  direct  and 
indirect  costs)  vary  widely  across  the  EU,  typically  accounting  for  0.4%-0.6%  of  the 
contract  value.  It  should  be  also  noted  that  the  costs  would  not  reduce  to  zero  if  the 
Remedies Directives were repealed. On the contrary, they could be even higher because 
of national differences in the review and remedies rules and a lack of harmonisation at the 
level leading to a more cumbersome context for tenderers and others. 

The benefits are important in terms of sound financial management, the best price/quality 
ratio  and  deterrence,  especially  when  considering  the  value  of  invitations  to  tender 
published  on  Tenders  Electronic  Daily.  The  2011  evaluation  of  EU  public  procurement 
legislation in general7 estimated that savings of 5% realised for the 420 billion of public 
contracts  that  were  published  at  EU  level  would  translate  into  savings  or  higher  public 
investment of over EUR 20 billion a year. The effective implementation of the Remedies 
Directives  can  therefore  make  such  estimated  savings  from  the  Public  Procurement 
Directives  more  likely  to  happen.  Finally,  the  evaluation  did  not  identify  any 
administrative  burden  considered  to  be  unnecessary  for  the  operation  of  the  Remedies 
Directives.  

(iii)Concerning  relevance,  the  objectives  of  the  Remedies  Directives  are  still  relevant.  The 
evaluation  revealed  that  many  provisions  of  the  Directives  are  perceived  as  relevant 
across  suppliers,  contracting  authorities  and  legal  practitioners.  Based  on  replies  to  the 
public consultation, the most relevant provision appears to be the standstill period (65% 
of  respondents),  followed  by  the  suspension  of  the  contract  award  procedure  where 
review  proceedings  are  initiated  (62%)  and  the  automatic  debrief  to  tenderers  (58%). 
Even if certain provisions are perceived to be of less practical value, they still contribute 
to the deterrent effect of the Remedies Directives. Another indicator of the relevance of 
the Remedies Directives is the actual use of the procedures they provide. In general, the 
remedies provided are frequently used in most Member States. There were around 50 000 
first  instance  decisions  across  Member  States  during  2009-20128.  The  most  frequently 
type  of  remedy  sought  is  set-aside  decision,  followed  at  some  distance  by  interim 
measures and the removal of discriminatory specifications.  

(iv) The  Remedies  Directives  are  coherent  with  other  EU  policies.  As  confirmed  by  the 
Court  of  Justice  of  the  European  Union,  the  right  to  an  effective  remedy  is  a  general 
principle  of  EU  law.  In  the  light  of  this,  the  Remedies  Directives  are  in  line  with  the 
rights and general principles laid down in EU primary law concerning fundamental rights. 
The Remedies Directives lie at the core of public procurement legislation as they allow 
bidders to enforce their substantive rights. They were found to be generally aligned with 
the 2014 legislative package on public procurement, in particular to cover the concessions 
subject  to  Directive  2014/23/EU.  Nonetheless,  as  already  mentioned  above  in  section 
referring  to  effectiveness,  the  interplay  between  the  Remedies  Directives  and  the  new 
legislative  package  on  public  procurement  could  be  further  clarified.  Finally,  by 
improving the effectiveness of national review procedures, especially those dealing with 
illegal direct awards of contracts, the Remedies Directives also play an important role in 

7  The  Evaluation  Report  on  Impact  and  Effectiveness  of  EU  Public  Procurement  Legislation,  SEC(2011)  853 

final.  

8  This  figure  came  from  the  Study  "Economic  efficiency  and  legal  effectiveness  of  review  and  remedies 

procedures for public contracts", further explained in section 5 of this Staff Working Document.  

9 

 
 
                                                 
tackling  breaches  of  Procurement  Directives 

that  could  also  entail 
effectively 
irregularities  with  criminal  implications.  The  evaluation  has  not  found  any  possible 
conflicts with other policy fields, but rather the contrary. 

(v) In the Commission’s view, the Remedies Directives present a clear EU added value. It 
was  generally  confirmed  by  all  sources  of  information  used  for  the  purposes  of  the 
evaluation  that  it  is  of  utmost  importance  to  have  EU  law  requirements  for  remedies  in 
public  procurement.  Ordinary  courts  under  ordinary  procedural  codes  cannot  guarantee 
rapid and effective review as required by EU case-law. For instance, before a mandatory 
standstill  period  was  introduced  by  Directive  2007/66/EC,  no  interim  measure  before 
ordinary courts was rapid enough to suspend conclusion of the awarded contract.  

Compared  with  other  fields  of  EU  law,  public  procurement  rules  have  certain 
specificities.  Firstly,  as  long  as  the  contract  is  above  the  EU  thresholds,  the  substantive 
public  procurement  rules  are  applicable,  irrespective  of  the  actual  cross-border  interest. 
Secondly, in each tendering procedure conducted by any contracting authority/entity there 
is  a  significant  potential  for  numerous  infringements  (e.g.  unlawful  exclusion  of 
tenderers,  unlawful  tender  specifications,  unlawful  contract  award  criteria,  use  of  the 
wrong procedures, accepting abnormally low tenders, conflict of interests, etc.) The role 
of the Commission, when dealing with individual complaints and potential infringements 
of  EU  law,  is  directed  to  ensuring  future  systematic  respect  for  EU  law,  rather  than 
obtaining remedies for individual parties to public tendering procedures particularly given 
the  large  volume  of  contracting  authorities,  tenderers  and  procedures  in  the  EU  and  the 
technicalities involved in each individual process.  

Suitable  rights  of  direct  recourse  for  bidders  are  therefore  indispensable  for  the  correct 
functioning  of  the  substantive  public  procurement  rules  and  for  the  proper  operation  of 
the  single  market  in  the  public  sector.  As  confirmed  by  numerous  stakeholders,  the 
minimum level of harmonisation ensured by Remedies Directives is absolutely essential 
in this respect.  

Conclusions 

Based  on  the  evaluation,  the  Commission  concludes  that  the  Remedies  Directives,  in 
particular the amendments introduced by Directive 2007/66/EC, largely meet their objectives 
in  an  effective  and  efficient  way  although  it  has  not  been  possible  to  quantify  the  concrete 
extent of their cost/benefits. Even if specific concerns are reported in some Member States, 
they usually stem from national measures and not from the Remedies Directives themselves. 
In  general  qualitative  terms,  the  benefits  of  the  Remedies  Directives  outweigh  their  costs. 
They remain relevant and continue to bring EU added value.  

Despite  the  overall  positive  conclusion  of  the  evaluation,  certain  shortcomings  were 
identified, in particular as regards the clarity of some provisions and the availability of data. 
Data for remedies actions on public contracts above thresholds brought in each Member State 
are not collected in a structured, coherent and systemic manner that would allow comparing 
the results obtained. For this reason, the proper measurement or estimation of the effects of 
the Remedies Directives is more difficult. 

Based on the information gathered in this evaluation, the report from the Commission to the 
European  Parliament  and  the  Council  on  the  effectiveness  of  Directive  89/665/EEC  and 
Directive 92/13/EEC, as modified by Directive 2007/66/EC, concerning review procedures in 

10 

 
 
 
the  area  of  public  procurement  to  which  this  document  accompanies,  draws  the  necessary 
operational conclusions and proposes relevant paths of action. 

11 

 
2. 

INTRODUCTION 

The  Procurement  Directives  regulate  award  procedures  of  public  contracts  and  concessions 
contracts (‘contracts’) above certain thresholds. The estimated value of tenders published in 
'Tenders Electronic Daily'in 2014 amounted to EUR 421.31 billion, which is 3.32 % of EU 
GDP.9  The  Procurement  Directives  apply  common  principles  of  transparency,  equal 
treatment, non-discrimination, open competition and sound procedural management to award 
procedures  to  the  benefit  of  economic  operators  across  the  single  market.  Open  and  well 
regulated procurement markets also contribute to a more efficient use of public resources and 
to the improvement in the quality of public purchases. 

The  experience  acquired  with  the  Procurement  Directives  showed  that  to  meet  completely 
their objectives, economic operators had to be able to enforce the rights conferred by those 
Directives  everywhere  in  the  EU.  Consequently,  the  'Remedies  Directives'  (Directives 
89/665/EEC and 92/13/EEC, as amended  through  Directive  2007/66/EC10) were  adopted as 
flanking measures. These Directives ensured that, based on minimum EU review standards, 
economic  operators  across  the  EU  would  have  access  to  rapid  and  effective  procedures  for 
seeking redress in cases where they considered that contracts had been awarded in breach of 
Procurement  Directives.  This  was,  and  is,  crucial  to  making  sure  that  public  contracts 
ultimately  go  to  the  company  which  has  made  the  best  offer,  and  therefore  to  building 
confidence among business and the public that public procurement procedures are fair. They 
are  also  an  indispensable  complement  to  Commission  enforcement  actions  in  the  field  of 
public procurement, leaving the Commission to focus on cases in which essential matters at 
EU level are at stake. 

The  Remedies  Directives  require  the  Commission  to  review  their  implementation  and  to 
report to the European Parliament and to the Council on its effectiveness, and in particular on 
the effectiveness of the alternative penalties and time limits. 

In  December  2012,  the  Commission  launched  a  regulatory  fitness  and  performance 
programme (REFIT).11 The purpose of the REFIT programme was to: 

•  identify opportunities to reduce regulatory costs and cut red tape; 

•  simplify regulation in order to meet policy goals; and 

•  achieve the benefits of EU regulation at the lowest possible cost. 

Fitness checks and evaluations of existing legislation are among the tools used by the REFIT 
programme  to  achieve  these  objectives.  As  the  reform  of  the  public  procurement  was 
followed up by the administrative burden programme and taken on board by REFIT, it was 
decided that the Remedies Directives should also be linked to REFIT, so that the regulatory 
fitness of the whole framework for public procurement would be assessed. Subsequently, the 

9  European  Commission,  2016,  2014  Public  procurement  indicators,  http://ec.europa.eu/growth/single-

market/public-procurement/studies-networks/index_en.htm 

10  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 contracts; 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 sectors; and 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. 

11 COM(2012) 746 final of 12.12.2012. 

12 

 
                                                 
Commission  Communication  on  "REFIT  –  results  and  next  steps"12  identified  the 
amendments introduced in the Remedies Directives by Directive 2007/66/EC as legislation 
that  should  be  evaluated  in  order  to  determine  whether  it  delivers  on  its  objectives  at 
reasonable  costs,  is  relevant,  coherent  and  has  EU  added  value.  Opportunity  was  therefore 
taken  to  perform  the  overall  evaluation  of  the  performance  of  the  Directives  and  examine 
whether they remain fit-for-purpose. 

As  far  as  the  scope  of  this  evaluation  is  concerned,  it  is  important  to  note  that  Directive 
2014/23/EU  on  the  award  of  concession  contracts  introduced  further  amendments  to 
Directive 89/665/EEC and Directive 92/13/EEC, mainly to extend their scope of application 
with  regard  to  concessions.  However,  the  deadline  to  turn  Directive  2014/23/EU  into 
national  law  elapsed  on  18 April  2016,  so  its  impact  is  not  addressed  in  this  evaluation, 
except for the aspect of coherence of the new legislative package on public procurement with 
the Remedies Directives. 

12 ‘Communication from the Commission — Regulatory Fitness and Performance Programme (REFIT): results 

and next steps’, COM(2013)685. 

13 

 
                                                 
 
3. 

BACKGROUND - THE REMEDIES DIRECTIVES 

The  Remedies  Directives  require  that  decisions  on  contracts  falling  within  the  scope  of  the 
Procurement Directives taken by contracting authorities/entities may be reviewed effectively 
and as quickly as possible, on the grounds that such decisions have infringed the Procurement 
Directives.  

Most  of  the  provisions  in  the  Remedies  Directives  are  mandatory  and  must  be  turned  into 
national law. Those mandatory provisions constitute ‘minimum conditions to be satisfied by 
the  review  procedures  established  in  the  national  legal  systems’13.  Member  States  may 
introduce conditions that go beyond those laid down in the Remedies Directives, for instance 
by laying down similar or equivalent review procedures for public procurement under the EU 
thresholds,  by  granting  to  organisations  that  do  not  act  as  economic  operators  (e.g.  trade 
associations) the right or capacity to bring an action or to appear before a court and by setting 
longer time limits for applying for review.  

However,  there  are  a  few  provisions  in  the  Remedies  Directives  that  are  optional  and 
therefore  Member  States  may  choose  not  to  transpose  them.  Optional  provisions  are,  for 
example,  the  imposition  on  plaintiffs  of  the  obligation  to  seek  review  first  with  the 
contracting authority and the possibility for review bodies (if certain conditions are met) not 
to declare a contract ineffective and impose instead alternative penalties. 

Directive  89/665/EEC,  covering  the  public  sector,  and  Directive  92/13/EEC,  covering  the 
utilities  sector,  are  very  similar  in  content.  For  the  sake  of  simplification,  any  reference  to 
Directive 89/665/EEC (and to contracting authorities) is understood to also refer to Directive 
92/13/EEC (and contracting entities) unless indicated otherwise. 

3.1. 

The founding Remedies Directives (Directives 89/665/EEC and 92/13/EEC) 

The founding Remedies Directives did not intend to fully harmonise the remedies systems in 
the area of public procurement. They laid down only ‘the minimum conditions to be satisfied 
by  the  review  procedures  established  in  domestic  law  to  ensure  compliance  with  the 
requirements  of  EU  law  concerning  public  procurement’14.  In  fact,  these  Directives 
constituted  (and  still  do  today)  a  rare  example  of  constraints  placed  on  the  principle  of 
national  procedural  autonomy  of  Member  States  with  a  view  to  ensuring  effective 
enforcement of EU rules at national level. The Remedies Directives are therefore an essential 
piece  in  the  public  procurement  landscape  and  a  unique  example  in  EU  law  of  giving  full 
effect to EU rights at national level. 

The  remedies  to  be  provided  by  Member  States  under  the  founding  Remedies  Directives 
included the powers to: 

(a) 

take,  at  the  earliest  opportunity  and  by  way  of  interlocutory  procedures,  interim 
measures  to  correct  the  alleged  infringement  or  prevent  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 
procedural decision taken by contracting authorities; 

(b) 

either set aside or ensure the setting aside of decisions taken unlawfully, including 
the removal of discriminatory technical, economic or financial specifications in the 

13 Judgment of 27 February 2003 in case C-327/00, Santex, paragraph 47. 
14 Judgment of the Court of Justice of 30 September 2010 in case C-314/09 Strabag AG, paragraph 33. 

14 

 
                                                 
invitation to tender, the contract documents or in any other document relating to the 
contract award procedure; and 

(c) 

award damages to persons harmed by an infringement. 

Directive  92/13/EEC  (for  the  utilities  sector)  also  provided  powers  to  take,  at  the  earliest 
opportunity,  if  possible  by  way  of  interlocutory  procedures  and  if  necessary  by  a  final 
procedure on the substance, measures other than those provided for in points (a) and (b) with 
the  aim  of  correcting  any  identified  infringement  and  preventing  injury  to  the  interests 
concerned i.e. making an order for the payment of a sum, in cases where the infringement had 
not been corrected or prevented. 
As  far  as  interim  measures15  were  concerned,  the  founding  Remedies  Directives  only 
specified that Member States could provide that the body responsible for review procedures 
could take into account the probable consequences of interim measures for all interests likely 
to  be  harmed,  as  well  as  the  public  interest,  and  could  decide  not  to  grant  such  measures 
when  their  negative  consequences  could  exceed  their  benefits.  In  particular,  the  Court  of 
Justice of the European Union ('the Court') made it clear that granting interim measures could 
not be made conditional on bringing an action for annulment of the contested act16. 

As  far  as  annulment  is  concerned,  there  were  no  further  provisions  in  the  Remedies 
Directives  on  this  issue  except  for  the  provision  that  specified  that  Member  States  could 
provide  that  where  damages  were  claimed  on  the  grounds  that  a  decision  was  taken 
unlawfully,  the  contested  decision  had  first  to  be  set  aside  by  a  body  having  the  necessary 
powers.  How  the  remedy  of  setting  aside  of  contracting  authorities’  decisions  operated 
depended on national implementing measures. 

The  conditions  for  the  award  of  damages  also  depended  on  national  provisions.  Directive 
92/13/EEC only specified that ‘where a claim is made for damages representing the costs of 
preparing a bid or of participating in an award procedure, the person making the claim shall 
be required only to prove an infringement of Community law in the field of procurement or 
national rules implementing that law and that he would have had a real chance of winning 
the  contract  and  that,  as  a  consequence  of  that  infringement,  that  chance  was  adversely 
affected’. The equivalent provision did not exist in Directive 89/665/EEC. Nonetheless, in its 
judgments in cases C-275/03 and C-70/06 Commission v Portugal and C-314/09 Strabag, the 
Court  held  that  it  was  not  possible  for  Member  States  to  require  proof  of  culpability  as  a 
precondition for an award of damages. 

Under the founding Remedies Directives, Member States had also a wide discretion to decide 
which  bodies  would  be  responsible  for  hearing  public  procurement  cases  in  first  instance. 
Such bodies could be either judicial or not judicial in character. There were provisions in the 
founding  Remedies  Directives  that  guaranteed  that  when  bodies  responsible  for  review 
procedures were not judicial in character, written reasons for their decisions had to be given 
and there had to be the possibility of an appeal to a court (or to another independent body that 
is a court or tribunal within the meaning of Article 267 of the Treaty on the Functioning of 
the European Union –TFEU). 

The founding Remedies Directives also guaranteed that review procedures were available, at 
least, to any person having or having had an interest in obtaining a public contract who has 
been or risks being harmed by an alleged infringement. 

15 Interim measures provided for the suspension of an award procedure prior to the conclusion of the contract. 
16 Judgment of 19 September 1996 in case C-236/95 Commission v. Greece. 

15 

 
                                                 
Furthermore,  the  founding  Remedies  Directives  laid  down  a  corrective  mechanism  that 
allowed the Commission to notify a Member State before the conclusion of a given contract 
when  it  considered  that  there  had  a  been  a  clear  and  manifest  infringement  of  EU  public 
procurement law during the award procedure of that contract. The Commission had to state 
the reasons of the alleged breach and the Member State concerned had 21 calendar days to 
reply to the Commission. In any event, this corrective mechanism did not in practice oblige 
the  Member  State  concerned  to  suspend,  correct  or  cancel  the  award  procedure.  The 
Commission  only  exceptionally  used  the  corrective  mechanism.  The  case-law  of  the  Court 
confirmed that such corrective mechanism was an option at the disposal of the Commission, 
which could even be used in paralel to an infringement procedure, but was not a pre-requisite 
for or a replacement of an infringement procedure.17 

3.2. 

Directive 2007/66/EC 

The Commission proposed the modernisation of the founding Remedies Directives following 
extensive  consultations  on  their  functioning  with  all  major  stakeholders,  including  Member 
States,  contracting  authorities,  businesses,  lawyers  and  professional  associations.  Both  the 
consultations and the case-law of the Court revealed a certain number of weaknesses in the 
review mechanisms established by the founding Remedies Directives.18 
As  a  result  of  these  consultations19,  two  key  weaknesses  were  identified  in  the  founding 
Remedies Directives: 

1) 

2) 

the absence of a period allowing an effective review between a decision to award a 
contract and the conclusion of the contract in question. This resulted in ‘the race to 
signature’: contracting authorities who wished to make irreversible the consequences 
of  the  disputed  contract  award  decision  proceeded  very  quickly to  the  signature  of 
the contract. 

Second,  it  was  impossible  under  the  founding  Remedies  Directives  to  challenge 
illegal direct awards of public contracts, which are the most serious breaches of EU 
law in the area of public procurement. 

The purpose of modernising the founding Remedies Directives was therefore to improve the 
effectiveness  of  review  procedures  concerning  the  award  of  contracts  and  to  ensure  better 
compliance with EU law, especially at a time when the breaches can still be corrected. To a 
large extent, the concrete proposals codified the case-law of the Court in this area. 

Directive  2007/66/EC  aimed  to  increase  guarantees  of  transparency  and  non-discrimination 
and  to  open  up  public  procurement  to  EU-wide  competition,  in  line  with  the  overall 
objectives of the Procurement Directives (i.e. to achieve best value for money). As mentioned 
in  its  recital  36,  Directive  2007/66/EC  sought  to  ensure  full  respect  for  the  right  to  an 
effective  remedy  and  to  a  fair  hearing,  in  accordance  with  Article  47  of  the  Charter  of 
Fundamental  Rights  of  the  European  Union.  As  the  Court  subsequently  stated:‘Directive 

17 Judgment of 24 January 1995 in case C-359/93, Commission v Netherlands, paragraphs 8 and 11-13. 
18 A list of relevant case-law on remedies can be found in Annex 1. 
19 As described in Section 3 of the Impact Assessment, the consultations included seeking the opinion of two 
Advisory  committees,  direct  consultation  using  the  Commission's  Interactive  Policy  Making  tool  (IPM), 
consultation of enterprises belonging to the European Business Test Panel (EBTP) and on-line questionnaires 
for awarding authorities. 

16 

 
                                                 
89/665 gives specific expression to the general principle of EU law enshrining the right to an 
effective remedy in the particular field of public procurement’20. 

While  maintaining  the  guarantees  introduced  by  Directives  89/665/EEC  and  92/13/EEC 
explained  above,  Directive  2007/66/EC  introduced  the  following  key  elements  which  are 
described in detail in the subsequent sections: 

(a)  an  automatic  debrief  at  the  time  of  the  contract  award  decision  and  a  ‘standstill 
period’; 

(b) time limits for pre-contractual remedies; 

(c) an automatic suspension of the contract award procedure where legal proceedings 
are brought against contracting authorities’ award decision; 

(d) the sanction for ‘ineffectiveness’; 

(e) time limits for ‘ineffectiveness’; and 

(f) alternative penalties. 

Finally,  Directive  2007/66/EC  adjusted  the  corrective  mechanism  to  clarify  that  the 
infringement  of  EU  public  procurement  law  does  not  need  to  be  considered  ‘clear  and 
manifest’ but rather ‘serious’. This refocus was the consequence of the strengthening of the 
effectiveness of national review procedures, in order to encourage those concerned to make 
greater  use  of  the  possibilities  for  review  by  way  of  interlocutory  procedure  before  the 
conclusion of a contract.21 

3.2.1.  Automatic debrief and ‘standstill period’ 

Before  the  adoption  of  Directive  2007/66/EC,  contracting  authorities  were  in  a  position  to 
ensure  that  a  disputed  contract  award  decision  was  irreversible  and  that  the  only  remedy 
available was damages. It sufficed to sign a contract at the moment of the award decision or 
right after without waiting for this decision to be challenged. 

In its judgment  of 28 October 1999 in case C-81/98, Alcatel,  the Court ruled that ‘Member 
states are required to ensure that the contracting authority’s decision prior to the conclusion 
of the contract as to the bidder in a tender procedure with which it will conclude the contract 
is in all cases open to review in a procedure whereby an applicant may have that decision set 
aside if the relevant conditions are met, notwithstanding the possibility, once the contract has 
been concluded, of obtaining an award of damages’.22 

In its judgment of 24 June 2004 in case C-212/02, Commission v Austria, the Court decided 
that  an  effective  remedy  presupposes  first,  an  obligation  to  inform  tenderers  of  the  award 
decision  and  second,  that  it  was  possible  for  the  unsuccessful  tenderer  to  examine  in 
sufficient time the  validity of the award decision.  As  the  Court ruled,  ‘a reasonable period 
must  elapse  between  the  time  when  the  award  decision  is  communicated  to  unsuccessful 
tenderers and the conclusion of the contract in order, in particular, to allow an application to 
be made for interim measures prior to the conclusion of the contract’23. 

20  Order  of  23  April  2015  of  the  Vice-President  of  the  Court  of  Justice  in  case  C-35/15  P(R),  Vanbreda, 
paragraph 28. Furthermore, Article 47 of the Charter applies even to public contracts and concession contracts 
that are not covered by the Remedies Directives, provided that they have a certain cross-border interest.  

21 Recital 28 of Directive 2007/66/EC. 
22 See paragraph 43 of the judgment.  
23 See paragraph 23 of the judgment. 

17 

 
                                                 
The Court did not specify however any conditions for implementing these rules. These were 
clarified by Directive 2007/66/EC. Article 2a, paragraph 2, of Directive 89/665/EEC makes it 
clear that ‘a contract may not be concluded following the decision to award a contract 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 tenders and candidates concerned 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  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’. 

This provision  clarifies also that  the communication of  the award decision to each tenderer 
and candidate concerned must be accompanied by a summary of the relevant reasons and a 
precise statement of the exact standstill period applicable. 

Based on the same provision, Member States may provide that the standstill period does not 
apply  in  cases  where  no  publication  of  contract  notice  is  required,  there  are  no  concerned 
candidates  or  in  specific  cases  concerning  contracts  based  on  framework  agreements  or 
specific contracts based on a dynamic purchasing system (‘DPS’). 

3.2.2.  Time limits for pre-contractual remedies 

Following  the  modifications  introduced  by  Directive  2007/66/EC,  Article  2c  of  Directive 
89/665/EEC states that where a Member State provides that any application for review of a 
contracting  authority's  decision  taken  in  the  context  of  a  contract  award  procedure  falling 
within  the  scope  of  Directive  2004/18/EC  must  be  made  before  the  expiry  of  a  specified 
period, time limits for applying for pre-contractual remedies shall be at least 10 calendar days 
(or 15 calendar days if means of communication other than fax or electronic means are used) 
with effect from the same triggering events as for the standstill period. 

3.2.3.  An automatic suspension 

According  to  Article  2,  paragraph  3,  of  Directive  89/665/EEC,  as  modified  by  Directive 
2007/66/EC, ‘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 for interim measures or for review. The suspension shall end no earlier than the expiry 
of  the  standstill  period’.  Member  States  have  the  choice  as  to  whether  the  automatic 
suspension  should  continue  at  the  stage  of  the  second  instance  review.  Furthermore,  for 
reasons  of  effet  utile,  in  some  Member  States  the  automatic  suspension  can  be  lifted  by  a 
body of first instance under the specific conditions established by Member States which, in 
particular, include the balancing of interests likely to be harmed and the public interest. 

3.2.4. 

Ineffectiveness 

The  remedy  of  ineffectiveness  was  introduced  in  particular  to  tackle  illegal  direct  awards 
which are considered by the Court ‘the most serious breach of Community law in the field of 
procurement’24. This remedy also codifies the case-law.25 

24 Judgment of 11 January 2005 in case C-26/03, Stadt Halle, paragraph 37. 
25  Judgment  of  10 April  2003  in  joint  cases  C-20/01  and  C-28/01,  Commission  v  Germany,  and  judgment  of 

18 July 2007 in case C-503/04, Commission v Germany. 

18 

 
                                                 
Article  2d,  paragraph  1,  of  Directive  89/665/EEC  enumerates  three  situations  in  which 
ineffectiveness applies: 

(i) 

(ii) 

(iii) 

illegal direct awards; 

an  infringement  of  the  standstill  period  or  the  automatic  suspension  if  this 
infringement  has  deprived  the  tenderer  of  the  possibility  to  pursue  pre-contractual 
remedies,  where  such  an  infringement  is  combined  with  an  infringement  of 
substantive public procurement rules and if that infringement has affected the chances 
of the tenderer to obtain the contract; and 

in cases where Member States have invoked the derogation from the standstill period 
for  contracts  based  on  a  framework  agreement  or  a  DPS,  where  there  is  an 
infringement of the second indent of the second subparagraph of Article 32(4)26 or of 
Article 33(5) or (6)27 of Directive 2004/18/EC. 

Article 2d paragraph 2 of Directive 89/665/EEC stipulates that the consequences of a contract 
being  considered  ineffective  must  be  provided  by  national  law.  National  law  might  thus 
provide  for  the  retroactive  cancellation  of  all  contractual  obligations  or  limit  the  scope  of 
cancellation to these obligations which still have to be performed. In the latter case, Member 
States must provide for alternative penalties. 

Article 2d, paragraph 3, of Directive 89/665/EEC allows Member States to provide that the 
review body may not consider a contract ineffective, if the review body finds that overriding 
reasons  relating  to  a  general  interest  require  that  the  effects  of  the  contract  should  be 
maintained. In this case, alternative penalties are instead applied. 

Pursuant  to  Article  2d,  paragraph  4,  of  Directive  89/665/EEC,  Member  States  may  also 
provide that the sanction of ineffectiveness will not apply if the following conditions are met: 

(i) 

the  contracting  authorities  consider  that  the  award  of  a  contract  without  a  prior 
publication of a contract notice in the Offical Journal of the European Union / Tenders 
Electronic  Daily  (OJEU/TED) 
in  accordance  with  Directive 
is  permissible 
2004/18/EC and Directive 2004/17/EC; 

(ii) 

contracting  authorities  publish  in  the  OJEU/TED  a  voluntary  ex  ante  transparency 
notice (‘VEAT’) expressing its intention to conclude the contract; and 

26  According  to  the  second  indent  of  the  second  subparagraph  of  Article  32(4)  of  Directive  2004/18/EC, 
‘Contracts based on framework agreements concluded with several economic operators may be awarded (…) 
where not all the terms are laid down in the framework agreement, when the parties are again in competition 
on  the  basis  of  the  same  and,  if  necessary,  more  precisely  formulated  terms,  and,  where  appropriate,  other 
terms  referred  to  in  the  specifications  of  the  framework  agreement,  in  accordance  with  the  following 
procedure: (a) for every contract to be awarded, contracting authorities shall consult in writing the economic 
operators  capable  of  performing  the  contract;  (b) contracting  authorities  shall  fix  a  time  limit  which  is 
sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as 
the complexity of the subject-matter of the contract and the time needed to send in tenders; (c) tenders shall be 
submitted  in  writing,  and  their  content  shall  remain  confidential  until  the  stipulated  time  limit  for  reply  has 
expired; (d) contracting authorities shall award each contract to the tenderer who has submitted the best tender 
on the basis of the award criteria set out in the specifications of the framework agreement’. 

27  According  to  Article  33(5)  of  Directive  2004/18/EC,  ‘each  specific  contract  must  be  the  subject  of  an 
invitation to tender. Before issuing the invitation to tender, contracting authorities shall publish a simplified 
contract  notice  inviting  all  interested  economic  operators to  submit  an  indicative  tender,  in  accordance  with 
paragraph 4, within a time limit that may not be less than 15 days from the date on which the simplified notice 
was sent. Contracting authorities may not proceed with tendering until they have completed evaluation of all 
the indicative tenders received by that deadline’. Under Article 33(6) of the Directive, ‘contracting authorities 
shall  invite  all  tenderers  admitted  to  the  system  to  submit  a  tender  for  each  specific  contract  to  be  awarded 
under the system. To that end they shall set a time limit for the submission of tenders’. 

19 

 
                                                 
(iii) 

contracting authorities do not conclude the contract before the expiry of a period of at 
least  10  days  with  effect  from  the  day  following  the  date  of  the  publication  of  this 
notice.28 

3.2.5.  Time limits for bringing an action for ineffectiveness 

According to Article 2f paragraph 1 of Directive 89/65/EEC, actions for ineffectiveness can 
be lodged within: 

(a) 

30 days with effect from the day following the date on which contracting authorities 
published a contract award notice (provided that it contains reasons for a direct award) 
or the contracting authorities informed the tenderers concerned of the conclusions of 
the  contract  (provided  that  this  information  contains  a  summary  of  the  relevant 
reasons); or 

(b) 

in  other  cases  before  the  expiry  of  at  least  six  months  with  the  effect  from  the  day 
following the date of the conclusion of the contract. 

3.2.6.  Alternative penalties 

Article  2e,  paragraph  1,  of  Directive  89/665/EEC  provides  for  alternative  penalties  where 
Member States might consider ineffectiveness to be inappropriate. 

Alternative penalties can also be applied in an optional manner, for instance: 

•  when the contract is not declared ineffective because of overriding reasons relating to 

a general interest; 

•  when ineffectiveness was declared only for those obligations which would still have 

to be performed (ex nunc); and 

• 

in the case of infringements of the standstill period or the automatic suspension if that 
infringement,  for  example,  is  not  combined  with  an  infringement  of  substantive 
provisions. 

Article 2e paragraph 2 of Directive 89/665/EEC specifies that ‘alternative penalties must be 
effective,  proportionate  and  dissuasive’.  It  can  be  either  the  imposition  of  fines  on  the 
contracting  authority  or  the  shortening  of  the  duration  of  the  contract.  Member  States  can 
provide for both, the imposition of fines and the shortening of the duration of the contract. 

The same provision allows Member States to confer on the review body broad discretion to 
take  into  account  all  relevant  factors,  including  the  seriousness  of  the  infringement,  the 
behaviour of contracting authorities and the extent to which the contract remains in force. 

The  same  provision  also  makes  it  clear  that  the  award  of  damages  does  not  constitute  an 
alternative penalty. 

28 In its judgment of 11 September 2014 in case C-19/13 Fastweb SpA the Court of Justice held that the contract 
may  not  be  declared  ineffective  if  the  above-mentioned  conditions  are  in  fact  satisfied,  which  it  is  for  the 
referring  court  to  determine.  In  particular,  the  review  body  is  under  a  duty  to  determine  whether,  when  the 
contracting authority took the decision to award a contract by means of a negotiated procedure without prior 
publication of a contract notice, it acted diligently and whether it could legitimately hold that the award of a 
contract without a prior publication of a contract notice in the OJEU/TED was permissible in accordance with 
Directive 2004/18/EC and Directive 2004/17/EC. 

20 

 
                                                 
3.3. 

Other aspects related to remedies 

As  seen  above,  the  Remedies  Directives  are  not  exhaustive  and  they  only  provide  for 
minimum  harmonisation,  which  Member  States  may  adapt  in  the  national  legislation 
transposing  the  Directives.  Member  States  may  also  transpose  some  or  all  of  their  optional 
provisions. Finally, beyond those aspects that are regulated in the Remedies Directives, other 
aspects  related  to  remedies  such  as  costs  and  time  limits  for  the  duration  of  the  review 
procedures  are  relevant  for  the  overall  performance  of  the  remedies  systems  in  Member 
States. 

3.3.1.  Costs of proceedings 

The Remedies Directives are silent about the costs of proceedings. Nonetheless, they require 
Member States to take the measures necessary to ensure that decisions taken by contracting 
authorities  may  be  reviewed  effectively.  It  is  therefore  indispensable  to  strike  a  balance 
between, on the one hand, the right of public authorities to impose (if they choose to do so) 
reasonable fees that cover actual administrative or judicial costs and deter frivolous litigation 
and,  on  the  other  hand,  the  right  of  economic  operators  to  have  easy  access  to  an  effective 
remedy. 

Cases on court fees in the area of public procurement have been recently brought before the 
Court in preliminary ruling proceedings. 

In  its  judgment  of  6 October  2015  in  case  C-61/14 Orizzone  Salute,  the  Court  ruled  that 
Article 1 of Directive 89/665/EC and the principles of equivalence and effectiveness must be 
interpreted as not precluding national legislation which requires the payment of court fees in 
public procurement cases. In paragraph 58 of its judgment the Court considered that the court 
fees which do not exceed 2 % of the value of the contract concerned are not liable to render 
practically impossible or excessively difficult the exercise of rights conferred by EU public 
procurement law. 

Furthermore, in the same judgment, the Directive does not preclude the charging of multiple 
court fees to an individual who brings several court actions concerning the same award of a 
public contract or that individual from having to pay additional court fees in order to be able 
to raise supplementary pleas concerning the same award of a public contract within ongoing 
judicial proceedings. 

However, in Orizzone Salute the national court is required to examine the subject-matter of 
the actions submitted by an individual or the pleas raised by that individual within the same 
proceedings. If it finds that the subject-matter of those actions is not in fact separate or does 
not  amount  to  a  significant  enlargement  of  the  subject-matter  of  the  dispute  that  is  already 
pending, it is required to relieve that individual of the obligation to pay cumulative court fees. 

In  its  order  of  7  April  2016  in  case  C‑495/14,  Tita,  the  Court  relied  extensively  on  the 
resoning developed in Orizzone Salute and found compatible with Directive 89/665/EEC fees 
that amount to € 2 000 when the value of the c ontract is equal or inferieur to € 200 000, € 4 
000 when the value of the contract is between € 200 000 and € 1 000 000 and € 6 000 when 
the value of the contract exceeds € 1 000 000. 

In its judgment of 15 September 2016 in case C-488/14, Star Storage, the Court found that 
Directive 89/665/EEC, read in the light of Article 47 of the Charter of Fundamental Rights, 
allows  contracting  authorities  to  require  from  applicants  the  constitution  of  a  good  conduct 
guarantee, provided that it is refunded to the applicant whatever the outcome of the action. 

21 

 
Finally,  other  costs  of  proceedings,  such  as  those  deriving  from  the  legal  representation 
before  review  bodies,  may  also  have  an  effect  on  the  functioning  of  the  national  review 
systems. 

3.3.2.  Time-limit for the duration of the review procedures 

According to Article 1, paragraph 1, of Directive 89/665/EEC, Member States are to take the 
necessary measures to ensure that decisions made by contracting authorities may be reviewed 
effectively  and,  in  particular,  as  rapidly  as  possible.  One  of  the  major  elements  that  might 
impact the effectiveness of the rules on remedies is the time it takes to obtain a decision. It is 
in interest of both the contracting authority and economic operator to obtain a quick decision. 
Notwithstanding  this,  the  review  procedures  should  allow  at  least  for  the  assessment  of  the 
legal elements of the case. 

4. 

EVALUATION — GENERAL ASPECTS 

4.1. 

Intervention logic 

The overall dynamics of various provisions foreseen under the Remedies Directives may be 
presented in a simplified form in an intervention logic model, which is shown in Figure 1. 

Figure 1: Intervention logic model 

Source:  ‘Economic  efficiency  and  legal  effectiveness  of  review  and  remedies  procedures  for  public  contracts’,  Europe  Economics  and 
Milieu, April 2015 

Based on the diagram above, the Remedies Directives (‘Input’) stem from the need to deter 
non-compliant  behaviour  and  to  improve  the  effectiveness  and  efficiency  of  public 
procurement  rules.  These  rules  must  be  understood  within  the  general  objectives  of 
the  single  market  and  rationalising  public  spending 
facilitating 
(‘Objectives’).  Following  the  transposition  of  Directive  2007/66/EC,  Member  States 
introduced the various measures listed under (‘Activities’) to allow challenges before national 
review bodies. 

the  freedoms  of 

The  initiative  entered  into  force  and  produced  direct  results  (‘Outcomes  ’).  These  can  be 
observed in the form of use of the  appeal  provision,  which can lead to challenging a given 
decision  or  even  suspending  a  procurement  outcome  or  imposing  penalties.  The  desired 
impact  of  the  Remedies  Directives  is  to  make  the  procurement  process  more  open,  fair 
transparent  and  competive,  and  to  increase  non-domestic  contracts  awarded  while  trying  to 

22 

 
 
avoid  additional  effects  such  as  an  excessive  amount  of  unnecessary  actions  (‘Intermediate 
impact’). 

The  remedy  actions  incur  costs  for  market  players  and  contracting  authorities.  It  must  be 
however kept in mind that most of these costs are not imposed by the Remedies Directives 
themselves.  Finally,  within  the  freedom  to  undertake  the  remedy  action  it  may  be  possible 
that  there  are  also  some  additional  or  side  effects  in  the  form  of  ‘nuisance’  or  unnecessary 
actions being brought forward. The intermediate impacts, less the potential additional effects, 
are expected to lead to final benefits in the form of procurement outcomes that reflect better 
value for money (‘Impacts’). 

4.2. 

Evaluation criteria and evaluation questions 

The evaluation of the Remedies Directives has been carried out paying particular attention to 
the  following  evaluation  criteria  and  questions  in  order  to  guide  the  analysis  of  the 
Directives’ functioning: 

•  Effectiveness: 

o  Have the Remedies Directives been effective in meeting, or moving towards, 
the  defined  objectives?  To  what  extent  do  the  Directives  contribute  to 
transparency, fairness and openness of the market?  

o  What  factors  influenced  the  achievements  observed?  (e.g.  to  what  extent  are 
the  various  provisions  envisaged  in  the  Remedies  Directives  being  used,  in 
particular  in  relation  to  the  use  of  complaints,  appeals  and  damages?)  Are 
there factors which are hindering this effect? 

•  Efficiency:  What  are  the  main  costs  and  benefits  of  the  Remedies  Directives  for 
contracting  authorities  and  economic  operators?  Are  there  significant  differences  in 
costs  or  benefits  between  Member  States?  Does  it  create  administrative  burden?  To 
what extent is the system being used unnecessarily? Do the benefits of the Directives 
outweigh their costs? Could the same benefits have been achieved at a lower cost? 

•  Relevance: Are the objectives of the Remedies Directives still relevant today? How 
has the original need for intervention  evolved in recent years? In particular, is there 
any  reason  to  believe  that  the  initiative  is  no  longer  justified  or  that  alternative 
provisions or soft measures are needed? 

•  Coherence  with  other  policies:  To  what  extent  are  the  Remedies  Directives 
consistent  with  each  other,  with  the  substantive  public  procurement  rules  and  with 
regulatory  measures  adopted  for  the  purposes  of  other  policy  objectives  at  EU  and 
national level? 

•  EU  added  value:  What  is  the  ongoing  added  value  of  EU  legislation  in  this  field? 
What  would  be  the  effects  if  the  Remedies  Directives  were  to  be  withdrawn  and 
Member States were free to adjust their national regulatory frameworks? Would these 
benefits have been achieved in the absence of the Directives? 

The  main  focus  of  the  evaluation  is  whether  the  Remedies  Directives  contribute  to  better 
enforcement of substantive public procurement legislation at national level. 

23 

 
5. 

METHODOLOGY 

In December 2013, Directorate General for Internal Market, Industry, Entrepreneurship and 
SMEs  (or  DG  GROW)29  launched  an  evaluation  of  the  amendments  introduced  to  the 
the  Commission's 
Remedies  Directives  by  Directive  2007/66/EC,  announced 
Communication  'Regulatory  Fitness  and  Performance  (REFIT):  Results  and  Next  Steps'30. 
This evaluation formed part of the Commission’s Agenda Planning31 and Work Programme.32 

in 

As  already  explained,  the  main  goal  of  this  evaluation  was  to  assess  the  functioning  of  the 
Remedies Directives, i.e. whether they have been efficient, effective, coherent, relevant and 
whether there is an added value at the EU level. 

In order to reach the above objectives, the following sources were used in this evaluation: 

• 

the  Study  ‘Economic  efficiency  and  legal  effectiveness  of  review  and  remedies 
procedures  for  public  contracts’  (‘'the  Study’),  commissioned  to  an  external 
consultant33  (information  and  data  used  in  the  Study  were  mainly  collected  through 
stakeholder interviews, contracting authority interviews, case studies and market data 
collection; as part of its task, the consultant also carried out surveys); 

•  a  number  of  consultations  described  in  detail  in  Annex  2  –  synopsis  report  of 
consultation  activities,  namely:  an  open  online  public  consultation, 
targeted 
consultations  with  Member  States  and  with  experts  and  practitioners  in  public 
procurement litigation; and 

• 

review of national legislation and case-law. 

Furthermore,  in  line  with  the  evaluation  guidelines,  an  inter-service  steering  group  was 
created  to  gather  a  broader  view  from  other  Commission  departments.  The  inter-service 
steering  group  was  composed,  in  addition  to  DG  GROW,  of  the  Commission’s  Secretariat-
General, the Legal Service, DG Justice and Consumers, DG Environment and DG Regional 
and Urban Policy. The group was consulted on various important aspects for the evaluation 
process. 

One of the difficulties encountered in the evaluation related to data gathering, which made it 
a challenge to assess the achievement of the objectives to date. For example, in some cases 
(e.g.  evidence  of  the  indirect  deterrent  effect  of  the  Remedies  Directive),  the  results  were 
related to only a small number of Member States, so it was difficult to generalise the findings 
to  the  rest  of  the  EU.  Although  the  'Impact  Assessment  Report  –  Remedies  in  the  field  of 
Public  Procurement'  that  preceded  Directive  2007/66/EC  already  mentioned  the  need  to 
establish  monitoring  and  evaluation  system  of  remedies  actions  in  Member  States,  this 
system was never established as at that time the focus was on the transposition of Directive 
2007/66/EC into national laws of Member States. 

29 At the time of launching the evaluation: Directorate General for Internal Market and Services (DG MARKT). 
30 COM(2013) 685 final. 
31 2015/GROW/048. 
32 COM(2014) 910 final. 
33 Study "Economic efficiency and legal effectiveness of review and remedies procedures for public contracts" 

written by Europe Economics and Milieu, April 2015 (the ‘Study’): 
http://ec.europa.eu/growth/single-market/public-procurement/modernising-rules/evaluation/index_en.htm 
The  Commission  consulted Member  States  on  the  Study via  the  Commission Government  Expert Group  on 
Public  Procurement  Committee.  The  Commission  received  comments  from  16  Member  States  (Austria, 
Germany,  Finland,  Estonia,  France,  Croatia,  Hungary,  Italy,  Latvia,  Lithuania,  the  Netherlands,  Poland, 
Slovenia, Slovakia, Sweden, the UK). Those comments were taken into account in the evaluation. 

24 

 
 
 
                                                 
  
Moreover, in most Member States, the information on the operation of review procedures in 
the field of public procurement and more specifically on the complaints lodged by economic 
operators in the field of public procurement is not collected in a structured manner. Details of 
cases are not always publically available on online sites and, even when they are available, 
they  are  not  often  presented  in  a  suitable  electronic  format  that  enables  interrogation, 
collection and comparison of relevant data (such as dates, type of remedy sought, number of 
decisions produced and OJEU identification number). 
Notwithstanding  these  limitations,  the  evaluation  was  based  on  a  review  of  best  available 
quantitative  and  qualitative  evidence  of  causality  between  actions  and  effected  changes.  It 
made  extensive  use  of  stakeholders'  and  experts'  view  as  well  as  case  studies  on  the 
functioning of the different provisions of the Directives. 

6. 

IMPLEMENTATION — STATE OF PLAY

34 

Directive 2007/66/EC, with significant and widespread delays35, was fully transposed by all 
Member  States.  National  transposition  measures  notified  to  the  Commission  are  listed  in 
Annex 5. 

6.1. 

First instance review bodies 

Review bodies varying in nature have been established in each Member State: in some, there 
are  independent  administrative  review  bodies,  be  they  specialised  or  not,  while  in  others,  a 
judicial body is responsible for the review. For details see Annex 6. 

6.2. 

The right to bring an action or to appear before a court 

The  locus  standi  differs  across  Member  States.  All  Member  States  require  the  review 
procedure to be available to persons having or having had an interest, and some specifically 
provide that this includes operators not tendering (in the Czech Republic, Denmark, Hungary, 
Ireland  and  Slovenia).  However,  a  number  of  Member  States  also  provide  that  other 
undertakings are eligible to start a review procedure, which includes third parties (the Czech 
Republic,  Denmark  and  Portugal).  In  other  jurisdictions  this  may  also  include  professional 
associations  (Bulgaria,  Denmark,  Hungary  and  Poland),  the  Competition  Authority  (the 
Czech  Republic,  Denmark,  Sweden  and  Slovenia),  the  contracting  authority  or  other 
representatives of the State (France, Finland, Croatia, Hungary and Slovenia). 

6.3. 

Interim measures, set aside decisions and damages  

In all Member States, provisions exist for the three compulsory types of remedies: 

(1) 

(2) 

(3) 

interim measures; 

set aside decisions; 

and damages. 

The  conditions  for  granting  interim  measures  are  comparable  in  Member  States  (a  strong 
prima facie case, a balance of interest test). However, courts and review bodies in Member 
States  differ  in  their  approaches  to  interim  measures  from  adopting  a  very  restrictive 

34  To  a  large  extent,  this  Chapter  is  based  on  Chapter  5 of the  Study,  completed  with  the  comments  received 

from Member States on the Study (see footnote 32) and DG GROW’s internal research. 

35  Infringement  procedures  were  initiated  against  20 Member  States  for  non-communication  of  national 

transposition measures. Most Member States completed the transposition during the year 2010. 

25 

 
                                                 
approach of hardly ever granting interim measures (e.g. Denmark, Portugal) to a more liberal 
one (e.g. Finland).36 

Member  States  vary  considerably  in  their  approaches  to  set  aside  decisions,  depending  on 
their  legal  traditions.  For  instance,  French  courts  look  into  possible  breaches  of  any 
procurement rules while the UK courts focus on major breaches.37 Accordingly, the relevant 
grounds  for  annulment,  the  extent  to  which  contracting  authorities’  decisions  are  reviewed 
and the scope and effects of annulment are specified in national laws. 

As  far  as  damages  are  concerned,  divergent  solutions  are  adopted  by  Member  States,  in 
particular, on the issue of causation or recoverable losses. As far as causation is concerned, 
some legal systems require a ‘certain casual’ link (Nordic countries); others, the balance of 
probabilities  (Ireland),  a  serious  chance  (France)  or  a  'real  and  substantial  chance'  of  being 
awarded a contract (the UK).38 As far as recoverable losses are concerned, in the Nordic and 
German systems the recovery of the loss of profits is exceptional whereas latin countries rely 
more on corrective and dissuasive effect of damages.39 Judges from supreme administrative 
courts in the EU, during a meeting organised on 22-23 October 2015 in Helsinki, considered 
that the right to damages lacked a sufficient level of harmonisation at EU level. 

6.4. 

Automatic debrief and ‘standstill period’  

In  general  terms,  Member  States  apply  the  minimum  standstill  period,  as  required  by  the 
Remedies Directives (i.e. 10 or 15 days, depending on the means of communication used).  

the  standstill  period 

is  14  calendar  days  from  notification  of 

In a number of cases, a longer standstill period has been specified. For example, in Bulgaria 
and  Estonia 
the 
candidates/participants in the public procurement procedure, while in Ireland it is a minimum 
of 14 calendar days if sent by fax or electronic means and 16 days if sent by other means. In 
Finland the standstill period is 10 days from the receipt of the decision only if a DPS is used, 
with the longer period of 21 days from the receipt of the decision applying in all other cases. 
The longest standstill period applies in Italy, where a period of 35 days applies from the date 
of the last communication of the contract award decision. 
Over half of the Member States40 have made use of the option to derogate from the standstill 
period  and  have  applied  the  derogation  in  all  three  cases  specified  in  the  Remedies 
Directives41. In a further eight Member States, the derogation has been used in one or two of 
the  cases  specified  in  the  Remedies  Directives.  Only  four  Member  States  (Austria,  Greece, 
Malta and Slovakia) have opted not to make use of the derogation at all, and therefore apply 
the standstill period set in their countries in all cases. 

36 R. Caranta, General Report, Public Procurement Law: Limitations, Opportunities and Paradoxes, The XXVI 

FIDE Congress in Copenhagen, 2014, p. 165. 

37 R. Caranta, ‘Many Different Paths, but Are They All Leading to Effectiveness?’, in: S. Treumer, F. Lichère 

(ed.), ‘Enforcement of the EU Public Procurement Rules’, DJOF Publishing Copenhagen, 2011, p. 69-69. 

38  R.  Caranta,  ‘Damages  for  Breaches  of  EU  Public  Procurement  Law.  Issue  of  Causation  and  Recoverable 
Losses’, in: D. Fairgrieve, F. Lichère (ed.), ‘Public Procurement Law. Damages as an Effective Remedy’, Hart 
Publishing, 2011, p. 176. 

39 Ibidem, p.  184. 
40 BE, BG, CY, DK, FI, HU, IE, LI, LU, LV, NL, PT, RO, SE, SI and UK. 
41 As already indicated in section 3.2.1, Member States may provide that the standstill period does not apply in 
cases  where  no  publication  is  required,  there  are  no  concerned  candidates  and  in  specific  cases  concerning 
contracts based on framework agreements or specific contracts based on DPS. 

26 

 
                                                 
6.5. 

Automatic suspension 

With regard to the period of suspension of the contract award procedure, in almost half of the 
Member States, the period of suspension applies until a decision is taken on application for 
interim measures42. In over half of the Member States the period of suspension applies until a 
decision is taken on the application for review (i.e. on the merits of the case)43, whereas in the 
vast  majority  of  Member  States  the  suspension  can  also  be  brought  to  an  end  at  an  earlier 
stage.  For  example,  in  the  UK,  courts  may  make  an  interim  order  bringing  to  an  end  the 
suspension  of  the  contract  award  procedure.  In  eight  Member  States  (Bulgaria,  the  Czech 
Republic, Finland, Ireland, Malta, Slovenia, Slovakia and UK), the period of suspension can 
apply until a decision on appeal against the first instance decision or longer. 

6.6. 

Ineffectiveness 

All Member States provide for ineffectiveness where a contracting authority has awarded a 
contract without prior publication of a contract notice in the OJEU/TED without this being 
permissible in accordance with the Procurement Directives. 

Moreover,  Member  States  provide  for  ineffectiveness  where  certain  infringements  have 
deprived  the  tenderer  applying  for  review  of  the  possibility  to  pursue  pre-contractual 
remedies.  Examples  of  infringements  which  can  lead  to  a  declaration  of  ineffectiveness  in 
this  case  include  cases  where  the  award  of  the  contract  was  not  in  compliance  with  the 
information  contained  in  the  contract  notice,  where  the  procurement  procedure  was 
withdrawn unlawfully or where there was a breach of the standstill provisions. 
Over half of the Member States44 also consider a contract ineffective if the Member State has 
invoked the derogation of the standstill period for contracts based on a framework agreement 
or a DPS and an infringement occurs. 

Two  Member  States  (Slovenia  and  Slovakia)  also  refer  to  ‘other’  specific  grounds  for 
ineffectiveness, which include failure by the contracting authority to provide the court with 
the complete documentation of the tender (Slovakia), and where the contract was concluded 
as  a  consequence  of  a  criminal  offence  committed  by  the  contracting  authority  or  by  the 
successful tenderer (Slovenia). 

Most  Member  States  allow  either  the  cancellation  of  all  contract  obligations  or  the 
cancellation  of  only  those  contract  obligations  that  are  still  to  be  performed,  with  the 
exception of Spain, which only provides for the cancellation of all contract obligations. 

The  majority  of  Member  States  transposed  the  provisions  on  the  VEAT  notice,  which,  if 
specific circumstances are fulfilled, allows the contracting authorities to avoid the sanction of 
ineffectiveness. Based on the information available in the OJEU/TED, the use of this notice 
remains  relatively  stable  since  2010  with  around  nine  to  ten  thousands  notices  of  this  kind 
published every year. 

(see Figure 2 below). 

42 AT, BE, CY, CZ, EL, HR, IE, IT, LT, NL, PT, SE and UK. 
43 BG, CZ, DE, DK, ES, FI, FR, HR, HU, IE, LU, LV, PL, RO, SE and UK. 
44 AT, DK, EL, ES, FI, HR, HU, IE, LT, LU, LV, PL, RO, SE, SI and UK. 

27 

 
 
                                                 
Figure 2: The number of VEAT notice published in OJEU/TED by year 2009-2015 

Source: OJEU/TED 

Based on TED data, since the deadline for transposition of Directive 2007/66/EC, there were 
more than 57 000 notices published across the  EU-28.  The  majority  of  VEAT  notice  usage 
was by France (37 226 notices), followed far behind by Poland (5 453), the United Kingdom 
(3 256) and Denmark (2 504). The least frequent notice usage was in Romania (1), Hungary 
(4), Luxembourg (4) and Estonia (22). 

Figure 3: The share of VEAT notices published in OJEU/TED 2009-2015 by country 

Source: OJEU/TED 

28 

 
 
 
 
Altogether,  10  countries45  accounted  for  95 %  of  the  total  VEAT  notices  published  in  the 
period  2009-2015.  This  is  shown  in  Figure  3  above.  Further  details  on  the  OJEU/TED 
publication levels are provided in Annex 7. 

6.7. 

Alternative penalties 

Concerning alternative penalties, the majority of Member States transposed both fines and/or 
the shortening of the duration of the contract. Details are specified in Annex 8. 

However,  alternative  penalties  are  sporadically  used  in  Member  States.  For  example,  in 
Austria,  since  the  transposition  of  Directive 2007/66/EC  in  2009,  alternative  penalties  have 
overall been imposed in 20 to 30 cases. In Sweden, the Competition Authority must pursue 
cases for alternative penalties when an administrative court has first decided that a contract 
may remain valid, although it was awarded in breach of a standstill period. The Competition 
Authority  has  had  the  power  to  pursue  these  cases  since  2011  and  so  far  there  have  been 
around  60  non-mandatory  applications  and  30  mandatory  applications  for  alternative 
penalties. 

6.8. 

Time limits for review 

6.8.1.  Pre-contractual remedies  

The time limits for pre-contractual remedies laid down in Article 2c of Directive 89/665/EC 
are 10 calendar days if electronic means or fax are used and 15 calendar days if other means 
of  communication  are  used.  In  both  cases,  these time  limits  apply  with  effect  from  the  day 
following the date in which the decision is sent to the tenderer or candidate. If the application 
concerns a decision that is not subject to a specific notification, the time limit shall be at least 
10 calenday days from the date of its publication. In the majority of Member States the time 
limits  follow  the  structure  of  the  Remedies  Directives  and  thus  lay  down  time  limits  that 
mirror the minimum standstill period. In some cases, such as the UK, a longer period of up to 
30 days is set. 

6.8.2. 

Ineffectiveness  

In cases of ineffectiveness, Article 2f of Directive 89/665/EC provides that an application for 
review must be made before the expiry of at least 30 calendar days. This takes effect from the 
day following the date on which the contracting authority published a contract award notice 
or the day following the date on which the contracting authority informed the tenderers and 
candidates  concerned  of  the  conclusion  of  the  contract,  and  in  any  other  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.  Several  Member  States  follow  exactly  the  structure  of  the 
Remedies  Directives  while  some  others  do  not  foresee  that  both  the  publication  and  the 
notification of the award decision trigger the start of the 30 days’ time limit. In any event, all 
Member States lay down a six months’ time limit. An overview of the applicable time limits 
is provided in Annex 9. 

6.8.3.  Damages 

The regime for the recognition of damages is not regulated by the Remedies Directives. It is 
therefore for the Member States to lay down the detailed procedural rules governing actions 
for damages, including time limits. Those detailed procedural rules must, however, be no less 

45 DK, ES, FR, IT, AT, PL, SI, SK, FI and UK. 

29 

 
                                                 
favourable than those governing similar domestic actions (principle of equivalence) and must 
not render practically impossible or excessively difficult the exercise of rights conferred by 
EU law (principle of effectiveness).46 

For  example,  in  the  Netherlands,  the  standard  limitation  for  legal  claims  of  five  years  is 
applied47.  In  Germany  the  time  limit  is  three  years  from  the  end  of  the  year  in  which  the 
damaged  party  has  knowledge  of  both  the  damage  and  the  identity  of  the  tortfeasor.  In 
France, the prescription period is governed by the prescription quadriennale. The time limit 
starts  to  run  from  the  first  day  of  January  following  the  claimant’s  becoming  aware  of  the 
violation.48 

In the preliminary ruling in case C-166/14 MedEval, the Court ruled that national legislation 
(in  this  case,  Austrian)  cannot  make  an  action  for  damages  conditional  upon  a  prior 
declaration of ineffectiveness when the latter is subject to a six-month limitation period even 
when  the  award  is  not  given  publicity.  The  Court  considered  that  such  limitation  would 
render impossible or extremely difficult to bring an action for damages. 

7. 

ANSWERS TO THE EVALUATION QUESTIONS 

It  is  important  to  remind  that  the  amendments  introduced  by  Directive  2007/66/EC  ensure 
only  minimum  harmonisation.  The  Remedies  Directives  leave  Member  States  discretion  in 
the choice of review procedures and the formalities. Moreover, the Remedies Directives also 
contain  several  optional  provisions  as  explained  above.  In  the  light  of  this,  the  remedies 
process  varies  from  Member  State  to  Member  State  according  to  how  the  Remedies 
Directives have been implemented and enforced in national law, and more fundamentally, to 
how  effective  the  administrative  and  judicial  systems  are.  In  general,  Member  States  have 
used  the  discretionary  powers  conferred  on  them  in  the  Remedies  Directives  to  go  beyond 
their minimum requirements. 

As  a  result,  the  implementation  of  rules  on  remedies  in  the  public  procurement  area  varies 
considerably across different Member States. One of the major challenges in the context of 
the  present  evaluation  is  therefore  to  distinguish  the  outcomes  directly  associated  with  the 
Remedies Directives from those that stem from national implementing measures and national 
approaches to enforcement. 

It is equally challenging to measure the deterrence effect of the Remedies Directives which is 
correcting any illicit practice before such a practice can be observed and working through the 
credibility of the system. It can be assumed that as long as there are no major deficiencies in 
the system established by the Remedies Directives, their deterrence effect is present. 

7.1. 

Effectiveness 

7.1.1.  Actual usage of the provisions 

The first and most important indicator of the effectiveness of the Remedies Directives is the 
actual  usage  of  provisions  provided  therein,  especially  as  far  as  the  newly  introduced 
provisions are concerned (e.g. the usage of VEATs). Some key data about the actual uptake 
of the new provisions were presented in section 6. As previously explained, the majority of 
Member  States  transposed  provisions  on  the  VEAT  notice  and,  based  on  the  information 

46 See judgment of the Court of Justice of 26 November 2015 in case C-166/14 MedEval, paragraph 37. 
47  H.  Schebesta,  ‘Towards  an EU  law  of  Damages. Damages  claims  for  violations of  EU public procurement 

law before national and European judges’, doctoral thesis, EUI Florence, p. 113. 

48 Ibidem, p. 148. 

30 

 
                                                 
available in the OJEU/TED, the use of this notice remains relatively stable since 2010 with 
around nine to ten thousands notices of this kind published every year (see: Figure 3 above). 

Referring  to  the  frequency  of  remedy  decisions,  the  Study  indicates  that  there  were  around 
50 000 first instance decisions across Member States during the period 2009-2012, with more 
than  20 000  coming  from  Sweden  (11 144)  and  Poland  (10 570).  While  no  other  Member 
States approach the numbers of these two countries, Croatia (6 939) and Bulgaria (4 411) also 
have a considerable number of decisions (see tables 1 and 2 below49). 
Table 1: Number of decisions by Member State and year in 2009-201250 

MS 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

EL 

ES 

FI 

FR 

HR 

HU 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

2009 

253 

138 

1 224 

111 

508 

1 275 

75 

193 

- 

- 

610 

1 374 

598 

1 

69 

235 

18 

901 

254 

1 985 

16 

225 

1 990 

392 

189 

5 

2010 

204 

160 

1 072 

130 

511 

1 065 

99 

208 

~207 

~441 

587 

6 

1 810 

673 

1 

91 

413 

8 

835 

5 

279 

2 823 

18 

401 

3 156 

419 

284 

13 

2011 

241 

192 

1 146 

73 

710 

989 

201 

224 

~207 

~441 

569 

16 

1 888 

688 

11 

180 

409 

10 

1 019 

83 

271 

2 820 

30 

619 

2 960 

537 

314 

16 

2012 

234 

221 

969 

66 

1 049 

893 

205 

254 

~207 

~441 

425 

18 

1 867 

460 

8 

0 

353 

3 

1 020 

152 

307 

2 942 

22 

427 

3 038 

516 

472 

13 

Total 

932 

711 

4 411 

380 

2 778 

4 222 

580 

879 

~621 

~1 323 

2 191 

40 

6 939 

2 419 

21 

340 

1 410 

39 

3 775 

240 

1 111 

10 570 

86 

1 672 

11 144 

1 864 

1 259 

47 

Total 

11 265 

13 461 

14 328 

14 067 

55 064 

Review of case-law. 

Number of decisions only for Member States where information was available.  

~ indicates approximate figure. 

49 In the context of the preparation of the Study, it was difficult to obtain data about the number of decisions in 
some  Member  States  (Table  1  presents  the  data  obtained,  covering  the  years  2009-12).  As  indicated  in 
footnote  28  above,  the  Commission  also  consulted  Member  States  and  it  received  data  from  some  of  them 
about the number of decisions (which is presented in Table 2, covering the years 2012-2014). 

50 Study, Table 6.2 (p. 83). 

31 

 
 
 
 
                                                 
Table 2: Number of decisions by Member State and year in 2012-2014 

MS 

AT 

DE 

EE 

FI 

FR 

HR 

HU 

IT 

LT 

LV 

NL 

PL 

SE 

SI 

SK 

UK 

2012 

281 

2013 

229 

893 cases (332 decisions) 

817 cases (284 decisions) 

2014 

348 

751 cases (297 
decisions) 

272 cases (48 decisions) 

287 cases (39 decisions) 

331 cases (65 decisions) 

425 

1 729 

695 

450-500 

6 042 

2 135 

572 

611 

1 315 

986 

3 281 (data for first and 
second instance) 

3 165 (data for first and 
second instance) 

3 518 (data for first and 
second instance) 

Information for 2012-2014: 
990 cases 

567 

No data available 

3 055 

3 201 

545 

411 

614 

115 

2 873 

3 265 

516 

484 

550 

115 

2 835 

3 508 

354 

403 

No data available 

No data available 

No data available 

Source: information provided by Member States (those not included in the table did not provide 
data).  

During the same period, there were also 10 103 second instance decisions made (for Member 
States  where  information  was  available51).  Out  of  the  Member  States  with  available 
information, Romania and Sweden had the highest numbers (2 231 and 2 386, respectively). 
For details see Annex 12.  

Information on the number of third instance decisions was available for only three Member 
States  (Estonia,  Lithuania  and  Sweden).  Out  of  the  total  800  decisions,  686  came  from 
Sweden with Estonia and Lithuania having significantly fewer cases. For details see Annex 
13. 

The  Study  points  to  the  fact  that  the  most  frequently  type  of  remedy  sought  is  set  aside 
decision,  followed  at  a  distance  by  interim  measures  and  the  removal  of  discriminatory 
specifications. In the second instance review of the sample, a set aside decision is the most 
used  appeal  by  both  applicants  and  contracting  authorities,  followed  by  discriminatory 
specifications.  A  similar  pattern  is  observed  for  third  instance  decisions.  For  details  see 
Annex 14. 

51 CZ, CY, DE, DK, EE, HU, IE, LT, LU, RO, SE, SI. 

32 

 
 
 
 
 
                                                 
7.1.2.  Effectiveness in meeting the objectives 

Evaluation  questions  to  be  answered:  Have  the  Remedies  Directives  been  effective  in 
meeting, or moving towards, the defined objectives? To what extent do they contribute to 
transparency, fairness and openness of the market? 

Questions  concerning  the  effectiveness  of  the  Remedies  Directives  were  asked  to  the 
stakeholders  in  the  context  of  the  Study  via  two  surveys  that  gathered  616  responses  from 
suppliers  and  832  from  contracting  authorities,  as  well  as  further  112  responses  from  legal 
practitioners. Their results reveal a general agreement with regard to the beneficial impact of 
the Remedies Directives on the way public procurement procedures are implemented. 

In the context of a Commission's public consultation, stakeholders were also asked whether 
the Remedies Directives helped the public procurement process to become more transparent, 
fairer,  open,  accessible  and  more  compelling  for  compliance.  The  majority  of  respondents 
agreed that the Remedies Directives have (fully or partially) improved the transparency of the 
public procurement process (81 %) and helped to make the award procedure more open and 
accessible (78 %) and fairer (80 %). This is presented in Table 3 to Table 5 below. 

Table 3: Effectiveness of the Remedies Directives — transparency 

Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs 

Table 4: Effectiveness of the Remedies Directives — fairness 

Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs 

33 

 
 
 
  
 
 
 
Table 5: Effectiveness of the Remedies Directives — openness and accessibility 

Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs   

The  respondents  also  agreed  that  the  Remedies  Directives  helped  the  public  procurement 
process  to  become  more  compelling  for  contracting  authorities  to  comply  with  the 
Procurement Directives (82 % agreed or agreed partially). 

Similar  patterns  emerge  from  the  survey  that  was  carried  out  for  the  purposes  of  the  Study 
and  where  a  general  appreciation  of  the  rules  on  remedies  prevailed  among  the  two  main 
groups of respondents52 (i.e. contracting authorities and economic operators, Figure 4). 

In  particular,  about  71 %  of  contracting  authorities  in  this  survey  took  the  position  that  the 
Remedies  Directives  were  effective  in  achieving  its  objectives.  Over  60 %  of  public 
respondents ‘agreed’ or ‘strongly agreed’ that the rules on remedies have helped to improve 
the  fairness  of  award  procedures.  As  much  as  three  quarters  of  the  contracting  authorities 
responding  to  the  survey  were  positive  about  the  impact  of  the  rules  on  remedies  on 
transparency in public procurement. The aspect of the Remedies Directives that was the least 
valued  by  the  contracting  authorities  consulted  in  the  survey  concerned  their  impact  on  the 
openness  of  the  award  procedure  —  only  a  half  of  the  participating  contracting  authorities 
(49 %) noticed an improvement in this respect. 

As far as the economic operators were concerned, their general appreciation of the Remedies 
Directives  was  also  pronounced,  however  to  a  lesser  extent.  Roughly  50 %  of  suppliers 
‘agreed’  or  ‘strongly  agreed’  that  the  rules  on  remedies  are  an  effective  way  for  reviewing 
and  challenging  the  procurement  decisions.  Just  over  half  of  the  respondents  felt  that  the 
provisions  of  the  remedies  have  helped  the  public  procurement  process  to  become  more 
transparent.  In  terms  of  the  fairness  and  openness  of  the  market,  only  around  respectively 
38 %  of  suppliers  ‘agreed’  and  35 %  ‘strongly  agreed’that  the  Remedies  Directives  have 
helped  to  improve  these  aspects  of  the  market.  In  general,  around  30 %  of  suppliers  were 
neutral when replying to the questions posed. 

52 See Section 6.4. of the Study. 

34 

 
 
 
 
 
 
 
                                                 
Figure 4: Perceptions of improvement of public procurement aspects 

Source: Survey of suppliers and contracting authorities/entities by Europe Economics53 

Legal  practitioners,  who  participated  also  in  a  separate  survey  in  the  context  of  the  Study, 
were more positive with respect to the success of the rules on remedies in all areas (Table 6). 

Table 6: Legal practitioners’ perceptions of the impact of the remedies —percentage of respondents 

Effective 

Transparent 

Fairer 

More Open 

Strongly agree 

Agree 

Do not know or Indifferent 

Disagree 

9 % 

74 % 

11 % 

6 % 

9 % 

74 % 

8 % 

9 % 

Strongly disagree 
Source: the Study, survey of legal practitioners by Europe Economics 

0 % 

0 % 

4 % 

58 % 

26 % 

12 % 

1 % 

4 % 

58 % 

25 % 

13 % 

0 % 

In particular, 83 % of the legal practitioners that participated in the survey in the context of 
the Study ‘agreed’ or ‘strongly agreed’ with the statements related to providing an effective 

53 The  questions formulated were:   

‘The ‘Remedies’ are an effective way for reviewing and challenging procurement decisions?’  
‘The ‘Remedies’ have helped the public procurement process to become fairer (all companies have the same 
opportunities to bid for public procurement contracts)?’ 
‘The ‘Remedies’ have helped the public procurement process to become more open (there are fewer barriers to 
is  easier)?’ 
companies  participating 
‘The ‘Remedies’ have helped the public procurement process to become more transparent (more information 
is  available  to  all  companies  about  the  details  of  public  contracts,  how  they  have  been  awarded,  and  how 
parties may challenge decisions)?’ 

in  public  procurement  contracts,  cross-border  procurement 

35 

 
 
 
 
  
                                                 
 
 
way  for  the  review  and  challenge  of  decisions  and  to  improving  the  transparency  of  public 
procurement.  62 %  also  ‘agreed’  or  ‘strongly  agreed’  that  the  Remedies  Directives  have 
helped the public procurement process become fairer and more open. The legal practitioners’ 
survey also provided insight into views of the impact of the Remedies Directives on suppliers 
taking  action  against  contracting  authorities  in  the  event  of  a  suspected  breach  of 
procurement law. 

7.1.3.  Factors affecting the effectiveness 

Evaluation  questions  to  be  answered:  What  factors  influenced  the  achievements 
observed?  (e.g.  to  what  extent  are  the  various  provisions  envisaged  in  the  Remedies 
Directives  being  used?  In  particular  in  relation  to  the  use  of:  complaints,  appeals  and 
damages?) Are there factors which are hindering this effect? 

a)  The duration of the review procedures 

One of the major elements that may impact the effectiveness of the rules on remedies is the 
time it takes to obtain a decision. 

According  to  the  Study,  in  some  Member  States  there  are  no  legislative  provisions  on  the 
duration of the review procedures. Over half of Member States, however, specify a maximum 
duration for review proceedings, including of administrative and, also in some cases, judicial 
nature54.  

The duration of review procedures carried out under the Remedies Directives were subject to 
scrutiny  within  the  Study,  covering  the  interim  measures,  pre-contractual  remedies  in  the 
first,  second  and  third  instance.  The  length  of  the  most  frequently  used  review  for  pre-
contractual remedies in the first instance is provided in Figure 5. 

54 According to the Study, four Member States set a maximum duration of over 30 days (35, 42, 45 and 60 days 
in DE, AT, CY and LT, respectively), the maximum period being 60 days/two months in Lithuania, as well as 
in certain Lander in Austria. Eight Member States (BE, BG, CZ, EL, HR, HU, LV and SK) set a maximum 
duration for  the  review procedure of 30  days.  Two  Member  States (FR and  RO)  specify  20 days,  while  the 
shortest  period  for  review  is  found  in  Poland  and  Slovenia,  where  the  review  body  is  required  to  take  a 
decision within 15 days from the submission of the application for review. 

36 

 
 
                                                 
Figure 5: Estimated length of the review in first instance (pre-contractual remedies 2009-2012) 

First pre-contractual

i

)
n
a
d
e
m

(

s
y
a
d
-

h
t
g
n
e
L

0
0
5

0
0
4

0
0
3

0
0
2

0
0
1

0

A
T
A
D
O
N

A
T
A
D
O
N

AT BE BG CY CZ DE DK EE EL ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK

Judicial

Non-judicial

Median

Note:  
AT  system  is  entirely  judicial  as  of  2014,  but  was  non-judicial  for  the  period  of  analysis  2009-2012.
 Statistics based on the following number of observations: AT: 62; BE: 118; BG: 118; CY: 119; CZ: 
60; DE: 92; DK: 103; EE: 44; EL: 100; FI: 26; FR: 17; HU: 116; IE: 4; IT: 24; LT: 2; LU: 31; LV: 134; MT: 60; 
NL: 37; PL: 164; RO: 116; SE: 18; SI: 114; SK: 109; UK: 7.  
CZ — The total length is calculated by adding the duration of the initial application for review before 
the Office for the Protection of Competition plus the duration of appeal to the Head of the Office.  
ES — No data.    
PT — No data. 
Source: Review of case-law. Figure 6.7 of the Study, p. 88. 

As  the  above  Table  from  the  Study  shows,  the  length  of  first  instance  pre-contractual 
remedies varies significantly  across  Member  States. Moreover the review lengths  appear to 
be influenced by the type of first instance review body. A general trend shows that Member 
States with a first instance administrative review body have the shorter review lengths, while 
Member States where a judicial process need to be followed have the longest review lengths 
(Belgium,  Greece,  Ireland,  Luxembourg,  Finland  and  the  UK).  This  confirms  the  general 
trend  of  effectiveness  of  the  administrative  review  bodies  over  the  judicial  ones  in  first 
instance pre-contractual remedies (for more details, see point b) below). 

37 

 
 
 
 
 
 
 
 
 
 
Figure 6: Dispersions of length of review in first instance (pre-contractual remedies 2009-2012) 

First pre-contractual

AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HU
IE
IT
LT
LU
LV
MT
NL
PL
PT
RO
SE
SI
SK
UK

0

1,000

2,000
Length (days)

3,000

4,000

Source: The Study, review of case-law; Member States with only one observation are not shown. 

The lengths of the review proceedings to grant interim measures in first instance and to reach 
a decision on the merits of the case in the context of pre-contractual remedies in second and 
third  instances,  as  identified  by  the  Study,  are  provided  in  Annex  10.  In  general  terms,  it 
appears  that  the  first  instance  (interim  measures)  is  the  shortest  on  average  and  the  second 
and third instance reviews are the longest.  

As  far  as  data  from  the  Commission's  public  consultation  are  concerned,  it  appears  that  in 
first instance:  

(i) 

(ii) 

review  procedures  concerning  interim  measures  (which  in  most  cases  are  initiated 
before the award of the contract) most often take up to one month; 

review  procedures  for  the  setting  aside  of  decisions  (which  are  also  in  most  cases 
initiated  before  the  award  of  the  contract)  and  those  for  ineffectiveness  (which,  in 
turn,  are  initiated  after  the  award  of  the  contract)  most  often  take  between  one  and 
three months; and  

(iii) 

review  procedures  for  damages  (which  are  also  initiated  after  the  award  of  the 
contract) most often take more than a year. For details see Annex 3 (summary of the 
replies to question 3). 

Member States that replied to the Commission’s questionnaire do not identify any examples 
of the remedy system causing delays in the award of public contracts or only exceptionally 
identify such delays. None of the Member States that replied to the questionnaire identified 
systematic  abuses  of  appeals  to  the  detriment  of  the  timely  functioning  of  their  national 
system. However, 40 % of respondents replied that the remedy system in their Member State 
caused  delays  in  the  award  of  public  contracts,  44.71 %  replied  that  it  happened  only 
occasionally  and  11.18 %  replied  ‘No’.  For  details  see  Annex  3  (a  summary  of  replies  to 
question 8). 

38 

 
 
 
b)  Administrative first instance review bodies v ordinary courts 

As already outlined in the previous section, the duration of review procedure often depends 
on whether the case is dealt by an administrative review body or an ordinary court. This has 
been  confirmed  by  a  large  majority  of  stakeholders,  who  consider  that  the  type  of  review 
body  has  an  impact  on  time  and/or  standard  for  review  (74.7 %  of  participants).  In  general 
terms, procedures before the ordinary courts take longer. Strict time limits to deal with a case 
can  be  imposed  on  administrative  review  bodies  whereas  they  are  not  often  imposed  on 
courts.  Administrative  review  bodies  with  specialised  functions  also  focus  on  public 
procurement law and do not deal with other areas of law. This specialisation tends to result in 
higher standards of adjudication. For details see Annex 3 (a summary of replies to question 
5). 

These  findings  are  confirmed  by  the  data  gathered  in  the  context  of  the  Study  which 
demonstrates that review before the ordinary courts most often takes longer.55 Based on data 
provided by some Member States, the average length of review procedures in Member States 
where ordinary courts adjudicate on public procurement matters in first instance is provided 
in Figure 7 below. 

Figure 7: Average length of review procedures in months (review before the ordinary courts) 

Source:  Targeted  consultation  with  Member  States;  Directorate  General  for  Internal  Market,  Industry, 
Entrepreneurship and SMEs 

To compare, the average length of review procedures in some of the Member States where 
specialised administrative review bodies adjudicate is shown in Figure 8 (also based on data 
provided by the Member States). 

55 In France, however, judicial review appears to be fast. 

39 

 
 
 
 
                                                 
Figure 8: Average length of review procedures in months (review before administrative body) 

Source:  Targeted  consultation  with  Member  States:  Directorate  General  for  Internal  Market,  Industry, 
Entrepreneurship and SMEs 

In general, the number of appeals to first instance decisions taken by administrative bodies is 
rather low. The success rate for appeals is also low, which can be interpreted as an indicator 
proving the seriousness of the work carried out in first instance by the administrative review 
bodies. For instance, in Poland the success rate of appeals in 2012 was 17 %; in 2013, 11 %; 
and in 2014, 12 %. In Hungary, in 2012, 71.4 % of decisions reviewed were upheld by courts, 
while only 0.7% of first instance decisions were altered; in 2013, 73 % of claims for appeal 
were rejected and only 4.7 % of first-instance decisions were altered; in 2014, 73.7 % of the 
claims for appeal were rejected and only 6.5 % of first-instance decisions were altered. 

c)  Costs of the proceedings 

Another essential aspect of remedial action is the cost of the proceedings (i.e. application fees 
and  legal  advocacy  costs)  taking  into  account  that  costs  may  be  covered  by  the  financial 
compensation  awarded  in  a  very  limited  number  of  some  specific  types  of  review  (i.e. 
damages). 

The  fee  for  applying  for  a  review  differs  across  Member  States.  In  some  countries  the 
application fee for a review procedure is a fixed flat rate, irrespective of the characteristics of 
the  contract.  In  others,  the  costs  are  determined  by  a  scale  criteria  or  by  a  value-range  that 
depends  on  the  size  or  the  type  of  contract  (for  works,  supply  or  services).  Some  Member 
States have a percentage-based fee which is capped at a maximum value. The differences in 
fee  levels  and  structures  is  driven  by  a  range  of  factors,  such  as  the  level  of  national 
procedural  autonomy,  different  systems  and  procedures  or  the  existence  of  administrative 
review  bodies.  A  summary  of  the  costs  in  the  different  Member  States  as  identified  in  the 
Study is shown in Annex 11. The wide disparities across counties are also clearly visible in 
Figure 9 below. For each Member State the figure presents the levels of fees (marked on the 
x-axis)  for  three  exemplary  contract  values:  EUR  250  000,  EUR  1  million  and  EUR  10 
million. 

40 

 
 
 
Figure 9: Dispersion of review fees within Member States (for contract values of EUR 250 000, EUR 1 million, and 
EUR 10 million) 

UK
SK
SI
SE
RO
PT
PL
NL
MT
LV
LU
LT
IT
IE
HU
HR
FR
FI
ES
EL
EE
DK
DE
CZ
CY
BG
BE
AT

0

0
0
0
5

0
0
0
0
1

0
0
0
5
1

0
0
0
0
2

0
0
0
0
4

0
0
0
0
6

0
0
0
0
8

0
0
0
0
0
1

Cost in Euro

250k-10m

1m

Source: The Study, research by network of legal experts 

Specific questions on litigation costs, including fees, were asked in the Commission's public 
consultation  (questions  16  to  19  of  the  questionnaire).  37.65 %  of  respondents  consider  the 
level of fees as ‘dissuasive’, while 50.59 % do not consider them as such. For example, many 
participants  from  the  UK  indicated  that  the  fee  of  up  to  £10 000  for  commencement  of 
proceedings is clearly dissuasive56. However, in some Member States, access to review is free 
(e.g.  in  Sweden,  Latvia,  France  and  Spain  there  is  no  fee  to  submit  a  complaint  in  first 
instance). 

Member States that replied to the Commission's questionnaire recognise that fees are a factor 
to  be  taken  into  account  by  potential  plaintiffs  but  they  also  help  to  ensure  that  only  well-
founded cases are brought for review. In general, Member States do not consider that the fees 
they impose have a dissuasive effect on economic operators to file complaints. Some Member 
States  are  in  the  process  of  reforms  to  lower  the  amount  of  fees,  whereas  others  consider 
imposing  higher  fees  in  the  future.  The  UK  considers  that  minor  breaches  of  public 
procurement  rules  are  effectively  addressed  via  means  such  as  their  ‘Mystery  Shopper’ 
scheme. This is a free option offered to economic operators whereby the Crown Commercial 

56 In UK, the information gathered concerning the fee of £10 000 diverges substantially from data provided in 

the Study and taken over in Figure 9.  

41 

 
 
                                                 
investigation  with 

Service  carries  out  an 
recommendations to resolve the matter and/or improve best practice for the future.57 
Several  respondents  to  the  Commission's  public  consultation  –  members  of  first  instance 
specialised administrative review bodies and some Member States – considered that it would 
be useful to have further legal guidance concerning the fees in the area of remedies in public 
procurement. 

the  contracting  authority  and  makes 

Finally,  a  large  majority  of  respondents  considered  also  that  costs  of  legal  advice  and 
representation  have  an  impact  on  access  to  justice.  Even  if  it  is  not  always  mandatory,  in 
particular  in  first  instance,  legal  advice  seems  to  be  sought  in  most  cases  due  to  the 
complexity  of  public  procurement  law.  For  details  see  Annex  3  (a  summary  of  replies  to 
question 19). 

d)  Equal balance towards stakeholders 

The effectiveness of the Remedies Directives can be also evaluated by the extent to which it 
creates  a  system  of  checks  and  balances  that  makes  them  evenly  equilibrated  towards  all 
stakeholders. 

Table 7: The interest of economic operators v contracting authorities  

Source: Public consultation, Directorate General for Internal Market, Industry, Entrepreneurship and SMEs   

As shown in Table 7 above, 57.06 % of participants to the Commission's public consultation 
considered that the Remedies Directive evenly balance the interest of economic operators in 
ensuring  the  effectiveness  of  public  procurement  law  and  the  interest  of  contracting 
authorities in limiting frivolous litigation; 23.53 % indicated that the balance is too much on 
the interest of economic operators; and 15.88 % pointed out that the balance is too much on 
the interest of contracting authorities/entities. 

These results confirm that the Remedies Directives are generally well balanced in addressing 
the  interests  of  all  parties  concerned.  Based  on  this,  it  is  plausible  to  conclude  that  the 
Remedies Directives have established conditions for the remedies system to work effectively. 

e)  The clarity of the Remedies Directives 

As explained above, the Remedies Directives ensure only the minimum harmonisation which 
is necessary to guarantee the private enforcement of the Procurement Directives. Moreover, 
as a result of the principle of national procedural autonomy, the Remedies Directives are not 
as prescriptive as the substantive Procurement Directives. As a consequence, the provisions 
of  the  Remedies  Directives  are  formulated  in  a  manner  to  cover  the  situation  of  Member 
States with very different traditions in terms of administrative and procedural law. 

57 For more information: https://www.gov.uk/government/publications/mystery-shopper-scope-and-remit 

42 

 
 
                                                 
In the context of the Commission’s public consultation, several stakeholders underlined that 
some provisions of the Remedies Directives could be more precise. In particular, more clarity 
would  be  welcome  in  a  number  of  areas  related  to  institutional  aspects  (for  example, 
professional  standards  for  members  of  an  administrative  review  body),  procedural  aspects 
(for example, criteria for lifting the automatic suspension, for granting interim measures and 
to  award  damages)  and  the  interplay  between  the  Remedies  Directives  and  the  new  Public 
Procurement Directives (for example, how the Remedies Directives apply to the modification 
and termination of public contracts and concessions and the so-called ‘light regime’). 

f)  National implementing measures and national approaches to enforcement 

Contributions received during the Commission's public consultation also identified problems 
that persist at national level and whose origin may not be found in the implementation of the 
provisions of the Remedies Directives at national level. Various stakeholders confirmed that 
some  problems  identified  are  rooted  either  in  national  legislation  beyond  the  Remedies 
Directives  or  in  national  practices  rather  than  stem  from  the  Remedies  Directives.  One 
example of this is time-limits for seeking review that are significantly longer than those laid 
down  in  the  Remedies  Directives,  which  in  some  cases  may  create  undue  delays  to  the 
detriment  of  contracting  authorities  and  successful  tenderers.  Other  examples  included  in 
particular:  (i)  a  high  number  of  complaints  lodged  due  to  the  lack  of  court  fees,  (ii) 
prohibitive court fees and cost of legal representation, (iii) too lengthy review procedures that 
result  from  an  insufficient  allocation  of  human  resources  by  Member  States  to  allow  the 
proper functioning of the review system, (iv) the instances of non-enforceability of the review 
decisions,  (v)  difficulties  in  ensuring  consistency  in  the  case-law  of  first  instance  review 
bodies, (vi) the absence of effective remedies in procedures below the EU thresholds having a 
cross-border  interest  and  (vii)  the  application  of  restrictive  conditions  to  grant  interim 
measures. For more details see Annex 3 (replies to question 20). 

g)  Data gathering  

Data gathering related to national review procedures does not affect the effectiveness of the 
Remedies Directives themselves. However, it prevents assessing the performance, including 
the  effectiveness,  of  the  Directives.  Indeed,  data  is  essential  to  design  consistent  national 
policies in the field of procurement review and for example to: 

- 

identify the resources needed or the abusive complaints; 

-  analyse the consistency of decisions based on effective searching tools; and 

-  enable  the  identification  of  contracting  authorities/entities  against  which  successful 
complaints are lodged most often and of the aspects of procurement procedures which 
are appealed against successfully. 

During the assessment of the functioning of the Remedies Directives, it became apparent that 
data  on  review  procedures  is  often  not  readily  available  or  even  not  available  at  all.  The 
difficulty  to  collect  data  related  to  review  in  the  field  of  procurement  (and  to  do  so  in  a 
comparable manner) first became clear during the preparation of the Study by the contractor 
and subsequently in the Commission's consultation of Member States. 

43 

 
7.1.4.  Deterrent effects of the Remedies Directives 

As mentioned previously, when evaluating the effectiveness of the Remedies Directives two 
different aspects need to be considered in parallel: 

(i) 

(ii) 

the direct impacts of its implementation and usage; and 

the indirect effects for the prevention of illegal practices in public procurement. 

The first type of impacts has been addressed in the preceding sections of this staff working 
document by discussing the implementation and the practical use of the Remedies Directives 
across Member States. As far as the second type of effects is concerned, it occurs when the 
Directives  act  as  a  deterrent  to  breaching  EU  public  procurement  laws  because  contracting 
authorities  perceive  that  there  is  reasonable  risk  of  being  challenged.  Hence  the  Remedies 
Directives serve to avoid illicit practices. 

The assessment of the extent to which the provisions in the Remedies Directives are acting as 
a deterrent to non-compliant behaviour of contracting authorities was one of the tasks for the 
Study.  The  consultants  approached  it  by  testing  a  hypothesis  that  past  complaints  and  their 
associated  costs  incentivise  contracting  authorities  to  improve  their  behaviour  in  a  manner 
that  results  in  a  decreased  probability  of  having  a  complaint  lodged  against  them.  Using  a 
sample  of  complaints  and  tender  notices  in  OJEU/TED  for  four  Member  States  (the  Czech 
Republic, Denmark, Slovenia and the Slovak Republic), the Study found that past complaints 
had  a  statistically  significant  negative  effect  (of  a  small  magnitude58)  on  the  probability  of 
having  a  complaint  lodged  in  the  Czech  Republic.  This  can  be  also  linked  to  reputational 
effects  of  complaints;  many  complaints  against  one  contracting  authority  indicate  potential 
problems of compliance and may push that contracting authority to improve its procurement 
practices.  This  effect,  although  only  observed  for  one  Member  State  in  the  limited  sample, 
pointed to the deterrent effect of the Remedies Directive in the particular context defined in 
the hypothesis. 

With  regard  to  the  corrective  mechanism  described  in  section  3.1  of  this  document,  the 
Commission  has  only  exceptionally  used  it  mainly  due  to  its  time  constraints  (the 
Commission’s formal decision need to be adopted and notified before the conclusion of the 
contract) and the strengthening of the remedies system by Directive 2007/66/EC. However, 
the  possibility  of  using  the  corrective  mechanism  gives  leverage  to  the  Commission  during 
investigations carried out during the award procedure and therefore may deter the contracting 
authority  or  entity  in  question  from  concluding  the  contract  and  thus  consummating  the 
alleged breach. 

The measurement of the effectiveness of the remedies system in this aspect is however very 
difficult  as  it  consists  of  preventive  impacts:  i.e.  the  mere  existence  of  the  Remedies 
Directives  avoids  breaches  of  EU  public  procurement  law  before  they  occur.  The  practical 
effect of the deterrence role of the Remedies Directives is that fewer illicit practices can be 
observed  and  hence  fewer  review  decisions  are  requested.  However,  the  importance  of  the 
absence  of  complaints  (i.e.  the  number  of  complaints  that  would  have  been  lodged  in  the 
absence  of  the  Remedies  Directives)  cannot  be  reasonably  estimated.  Despite  that  lack  of 
quantification,  the  broadly  understood  deterrent  effects  of  the  Remedies  Directives  can  be 
indirectly inferred from: 

(i) 

(ii) 

the overall uptake of the rules; and  

the generally positive perceptions on its impacts. 

58 See: section 6.5 of the Study.  

44 

 
                                                 
7.1.5.  Conclusions — effectiveness: 

The Remedies Directives  have generally met their objectives of: increasing the guarantees of 
transparency  and  non-discrimination;  allowing  effective  and  rapid  action  to  be  taken  when 
there is an alleged breach of the Procurement Directives; and providing economic operators 
with the assurance that all tender applications will be treated equally.  The available data on 
the  actual  usage  of  the  provisions  added  further  evidence  on  the  effectiveness  of  the 
Directive. In general, the remedies provided in the Remedies Directives were frequently used 
in most of Member States. There were around 50 000 first instance decisions across Member 
States during 2009-2012. The most frequently type of remedy sought is  set aside decision, 
followed  at  distance  by  interim  measures  and  the  removal  of  discriminatory  specifications. 
As far as the opinions of the stakeholders were concerned, a clear majority of respondents to 
the  public  consultation  carried  out  by  the  Commission  departments  considered  that  the 
Remedies  Directives  have  had  a  positive  effect  on  the  public  procurement  process.  It  is 
considered  to  be  more  transparent  (80.59%),  fairer  (79.42%),  more  open  and  accessible 
(77.65%)  and  it  provides  greater  incentive  to  comply  with  substantive  public  procurement 
rules (81.77%). As confirmed by virtual consensus among all the interested parties, Directive 
2007/66/EC  substantially  increased  the  effectiveness  of  pre-contractual  remedies  by 
introducing  a  minimum  standstill  period  between  the  notification  of  an  award  decision  and 
the signing of the contract. 

Some  national  systems  require  that  legal  protection  in  public  procurement  procedures  is 
provided  at  first  instance  by  administrative  review  bodies  rather  than  ordinary  courts.  As  a 
general  trend,  these  tend  to  be  more  effective.  This  is  confirmed  by  a  large  majority  of 
respondents  to  the  public  consultation  (74.7%)  who  considered  that  procedures  before 
ordinary  courts  take  generally  longer  and  result  in  lower  standards  of  adjudication  than  the 
procedures before specialised administrative review bodies. 

In most cases, the costs of review procedures, albeit very divergent across Member States, do 
not  seem  to  have  decisive  dissuasive  effect  on  the  access  to  remedies.  Moreover,  the 
Remedies Directives are also well balanced in addressing the interest of all parties concerned. 
In particular, 57.06% of respondents to the public consultation considered that the Directives 
evenly  balance  the  interest  of  economic  operators  in  ensuring  the  effectiveness  of  public 
procurement law and the interest of contracting authorities in limiting frivolous litigation. As 
a  final  point,  the  Remedies  Directives  are  also  effective  as  a  deterrent  to  non-compliant 
behaviour in the area of public procurement. 

Alternative  penalties  are  sporadically  used  in  Member  States  and  were  considered  by 
respondents  to  the  online  public  consultation  (carried  out  by  the  Commission  departments) 
and  by  some  Member  States  to  be  the  least  relevant  remedy.  Nonetheless,  views  were 
expressed  that  all  remedies  provided  for  in  the  Remedies  Directives  contribute  to  their 
deterrent  effect  and  provide  for  a  comprehensive  and  effective  system  for  sanctioning 
irregularities  in  public  procurement.  Concerning  time  limits,  no  specific  evidence  was 
gathered in the context of the evaluation that would demonstrate that time limits that follow 
the  structure  of  the  Remedies  Directives  are  either  too  long  and  cause  undue  delays  in  the 
public  procurement  process  or  too  short  and  thereby  do  not  allow  economic  operators  to 
enforce their rights. 

The  evaluation  revealed  that  certain  aspects  of  the  Remedies  Directives  could  be  made 
clearer. This is confirmed by the contributions received. This applies, for example, to matters 

45 

 
such  as  the  interplay  between  the  Remedies  Directives  and  the  new  legislative  package  on 
public  procurement,  and  the  development  of  criteria  to  be  applied  to  lift  the  automatic 
suspension of the conclusion of the contract following the lodging of a legal action. 

The  evaluation  also  made  it  possible  to  identify  problems  that  persist  at  national  level.  In 
particular,  various  stakeholders  confirmed  in  the  context  of  the  public  consultation  that 
problems identified are rooted either in national legislation beyond the Remedies Directives 
or in national practices, and not in the Remedies Directives. 

Finally,  the  Commission  also  recognises  that  in  most  Member  States,  the  information  on 
national remedies systems is not collected in a structured manner, making the analysis of the 
performance  of  the  Directives  extremely  difficult.  In  addition,  it  is  rarely  used  for 
policymaking  purposes  (for  example,  identification  of  resources  needed  or  abusive 
complaints;  consistency  of  decisions  based  on  effective  searching  tools;  identification  of 
contracting  authorities/entities  against  which  successful  complaints  are  lodged  most  often; 
and identification of the aspects of procurement procedures that are appealed successfully). 

7.2. 

Efficiency 

Evaluation questions to be answered: What are the main costs and benefits of the Remedies 
Directives  for  contracting  authorities  and  economic  operators?  Are  there  significant 
differences  in  cost  or  benefits  between  Member  States?  Do  they  create  administrative 
burden?  To  what  extent  is  the  system  being  used  unnecessarily?  Do  the  benefits  of  the 
Remedies  Directives  outweigh  its  costs?  Could  the  same  benefits  have  been  achieved  at  a 
lower cost? 

7.2.1.  Cost / benefits 

As  pointed  out  in  the  Impact  Assessment,  the  legal  process  linked  to  a  remedy  action  can 
sometimes be lengthy, while the cost involved may be high and not even be covered by the 
financial  compensation  awarded  (if  any).  Consequently,  the  potential  costs  can  deter  an 
aggrieved supplier from bringing a damages action. In principle, the key types of costs that 
affect such decisions are the legal costs of bringing the action (administrative/court fees and 
the costs of legal services). As presented in the previous section, the Remedies Directives are 
perceived  as  effective  by  the  majority  of  stakeholders.  Nevertheless,  their  existence  could 
entail additional operational costs for them, which are analysed below.59 

In the survey of suppliers carried out in the context of the Study, respondents were asked to 
provide an estimate of all elements of costs associated with a review, which included internal 
and  external  costs.  The  estimates  of  costs  were  based  on  136  responses  from  suppliers  and 
162 from contracting authorities. 

59 In this context, the notion of costs differs from the one used under section 7.1.3, point c) above. Indeed, for 
the needs of the analysis of the efficiency of the Remedies Directives, the costs considered cover all elements 
of costs associated with a review, which include internal and external costs. 
Internal  costs  included  the  time  of  internal  staff  to  prepare  and  administrate  a  review,  both  by  economic 
operators and contracting authorities, and were addressed by asking respondents to provide the number of day 
spent by junior and senior staff in the review process (the numbers were subsequently multiplied by national 
wage level for junior and senior staff in the private sector). External costs included direct payments for legal 
advice, court fee and other external costs associated to a review. 

46 

 
 
                                                 
The median total costs for suppliers and contracting authorities are in the order of EUR 4 000 
for  both  suppliers  and  contracting  authorities,  while  the  mean  is  EUR  11 100  for  suppliers 
and EUR 23 800 for authorities (Table 8). 

Table 8: The cost of review (mean and median) by economic operators and contracting authorities  

Mean 

Median  

Minimum 

Maximum 

Suppliers 

€11 100  

€4 100  

€0  

€76 900  

Contracting authorities/entities 

€23 800  

€3 900  

€0  

€1 718 200  

Source: the Study, suppliers and contracting authorities surveys by Europe Economics 

It  is  worth  underlining  that  due  to  the  presence  of  extreme  values,  the  median  should  be 
considered to be the best indicator of average costs across respondents. Even if the total costs 
of  EUR  3 900  appears  to  be  high  in  absolute  terms,  in  particular  for  small  contracting 
authorities, it can be assumed that public contracts being awarded in breach of Procurement 
Directives  would  result  in  higher  prices  and  lower  quality  and  therefore,  the  costs  of  not 
having a review mechanism in place would be even higher. 

Moreover,  considering  the  value  of  the  public  contracts  at  stake  (i.e.  above  the  thresholds 
defined  in  the  Procurement  Directives)  in  proportional  terms,  those  costs  seem  reasonable. 
Indeed, in terms of costs incurred expressed as a percentage of the contract size, the average 
ranged  from  1.2 %  for  suppliers  and  1.6 %  for  contracting  authorities.  The  median  of  a 
contract size was found to be around 0.6 % for suppliers and 0.4 % for contracting authorities 
(Table 9). 

Table 9: The cost of review as a percentage of the size of contract  

Mean 

Median 

Minimum 

Maximum 

Suppliers 

1.2 % 

0.6 % 

0 % 

12.5 % 

Contracting 
authorities/entities 

1.6 % 

0.4 % 

0 % 

17.2 % 

Source: the Study, suppliers and contracting authorities surveys by Europe Economics 

However,  cost  estimates  made  by  economic  operators  and  contracting  authorities  reveal  a 
significant disparity. This is shown in box plots in Figure 10, where the boxes represent the 
distribution range (containing 50 % of respondents with a maximum estimated cost between 
the 25th and 75th percentiles). The white gap dissecting the boxes represent the median value 
and outliers in the responses are presented as dots. 

47 

 
 
 
 
 
Figure 10: Dispersion of review costs as a percentage of the size of contract (estimates by Member States) 

Costs of review (suppliers)

Costs of review (CAE)

AT

BE
BG

CY*
CZ*

DE
DK

EE

EL
ES

FI*
FR*

HU
IE*

IT*
LT*

MT*
NL

PL*
PT*

RO

SE
SI*

SK*
UK

AT

BE

BG*

CY*

CZ

DE

DK

EL

ES

FI

FR

HU*

IE*

IT

LU*

NL

PL

RO*

SE

SI

SK*

UK

0

5

10

15

0

5

% of contract

10
% of contract

15

20

Source: The Study, suppliers and contracting authorities/entities surveys 
Note: * Member States with less than 5 responses 

By comparison, the survey addressed to legal practitioners provided a more focused overview 
of  costs  incurred  in  bringing  forward  a  review  case,  as  it  included  both  the  costs  of  legal 
services  and  other  costs.60  The  table  below  presents  the  average  and  median  costs  of  three 
different  contract  sizes  based  on  the  data  gathered  from  legal  practitioners.  As  shown  in 
Table 10, the median cost of the review process represent less than 4 % of the total value of a 
contract, particularly at the lower value end, while the average of all contracts for the median 
cost oscillates around 1.9 %. 

Table 10: Total cost of review according to legal practitioners, by different contract sizes 

€250 000 

€1 million 

€10 million 

Average of all contracts 

Values 

Mean 

Median 

% of contract size 

Mean 

Median  

19 737 

9 188 

7.3 % 

3.7 % 

27 043 

18 488 

2.5 % 

1.8 % 

53 015 

30 124 

0.5 % 

0.3 % 

33 265 

19 266 

3.4 % 

1.9 % 

Source: The Study, legal practitioners’ survey by Europe Economics 

To  summarise,  qualitative  stakeholder  feedback  shows  that  the  Remedies  Directives  induce 
certain operational costs. However, this operational cost remains reasonable, especially when 
compared with the value of contracts concerned. 

7.2.2.  Overall cost/benefit relationship 

It is difficult to provide a conclusive cost/benefit analysis of the legislation evaluated as the 
economic  impacts  of  the  Remedies  Directives  are  not  direct,  but  they  stem  from  the  better 
application  of  the  substantive  public  procurement  rules  (as  the  Remedies  Directives  are 

60  The  types of ‘other’  costs vary  across  Member  States but  in  general  include  court fees,  administration fees 
(i.e. in bringing a complaint before a Review Body), stamp fees, external expert and witness costs. In some 
Member States clients incur a cost if the claim they bring is judged to be invalid. 

48 

 
 
 
 
                                                 
flanking measures to these rules). In any event, it can be assumed that the total direct cost of 
applying  the  Remedies  Directives  is  negligible,  especially  when  compared  to  the  value  of 
invitations  to  tender  published  on  OJEU/TED  (roughly  EUR  420  billion  per  year,  which  is 
the  total  value  of  procurement  that  can  be  potentially  concerned  by  remedy  actions). 
Additionally,  some  costs  of  review  and  remedies  would  be  incurred  whether  the  Remedies 
Directives  were  in  place  or  not.  The  difference  in  that  scenario  could  be  that  without  the 
Remedies  Directives  the  procedural  guarantees  would  be  fewer  and  therefore  the  benefits 
could be substantially more limited. Consequently, the availability of remedies and their costs 
would not reduce to zero if the Remedies Directives were repealed. On the contrary, the costs 
could be even higher due to national differences in the review and remedies rules and lack of 
harmonisation  at  the  EU  level,  as  it  would  be  more  difficult  for  tenderers  bidding  in  other 
Member  States  to  contest  decisions  of  the  contracting  authorities.  Furthermore,  as  already 
demonstrated  by  stakeholders'  perceptions  of  the  effects  of  the  Remedies  Directives  on  the 
public procurement process, an EU wide set of rule on remedies increases the confidence of 
firms  and  the  general  public  in  transparency,  fairness,  openness  and  accessibility  of  public 
procurement systems. 

Concerning  benefits,  the  intervention  logic  supporting  the  Remedies  Directives  is  that  the 
rules  on  review  and  remedies  not  only  guarantee  the  enforcement  of  the  substantive 
Procurement  Directives,  and  ultimately  the  respect  of  the  rule  of  law  as  enshrined  in  the 
Charter  of  Fundamental  Rights,  but  they  also  foster  openness  and  competition  in  public 
procurement. This ultimately targets better value for money, which among other factors can 
be attained through savings and/or lower prices. 

As far as the latter are concerned, the 2011 Evaluation Report on the impact and effectiveness 
of  EU  Public  Procurement  legislation61  found  that  overall  prices  for  EU  advertised 
procedures  were  2.5-10 %  lower  than  contracting  authorities  initially  expected  (based  on 
OJEU/TED  data).  This  evaluation  estimated  that  savings  of  5 %  realised  for  the  EUR  420 
billion of public contracts which were published at EU level would translate into savings or 
higher  public  investment  of  over  EUR  20  billion  per  year.  The  effective  and  efficient 
implementation of the Remedies Directives can therefore make the above estimated savings 
potential brought by the Procurement Directives more prone to materialise. 

7.2.3.  Administrative burden 

The concept of administrative burden refers to the costs incurred by business, the voluntary 
sector, public authorities and citizens in meeting legal obligations to provide information on 
their action or production, either to public authorities or to private parties. The administrative 
costs consist of two different cost components: the business-as-usual costs and administrative 
burdens.62 They are different from compliance costs, assessed above in section 7.2.1, which 
stem  from  the  generic  requirements  of  the  legislation,  although  –  as  in  the  case  of  the 
Remedies Directives – they are still costs that do not stem from a legal obligation. 

Access  to  information  in  the  context  of  award  procedures  for  contracts  constitutes  an 
expression  of  the  principle  of  transparency,  which,  along  with  the  principles  of  equal 
treatment and non-discrimination, underlies the EU public procurement rules and intends to 
preclude any risk of favouritism or arbitrariness on the part of the contracting authorities.63 

61 SEC(2011) 853 final. 
62 Commission staff working document Better Regulation Guidelines SWD(2015) 111 final, Toolbox Tool 53, 

http://ec.europa.eu/smart-regulation/guidelines/docs/br_toolbox_en.pdf. 

63 Judgment in case C-496/99 P, Succhi di Frutta, paragraph 111. See also judgment of 19 June 2003 in case C-
315/01, GAT, paragraph 73; judgment of 16 December 2008 in case C-213/07, Michaniki AE, paragraphs 44-

49 

 
                                                 
The  substantive  public  procurement  rules  impose  information  obligations  mainly  on 
contracting  authorities,  which  in  most  cases  must  provide  substantial  ex  ante  and  ex  post 
information  about  the  award  procedures  (for  instance  through  the  publication  of  a  contract 
notice  in  the  OJEU/TED).  As  already  indicated,  that  obligation  of  transparency  constitutes 
the  basis  of  the  EU  public  procurement  rules,  to  the  extent  that  those  rules  would  be 
meaningless without access to information. 

The Remedies Directives hardly alter the information obligations laid down in the substantive 
public  procurement  rules.  One  exception  is  the  automatic  debrief,  that  is  to  say,  the 
systematic  obligation  for  contracting  authorities  to  inform  any  unsuccessful  candidate  or 
tenderer  of  the  reasons  for  the  rejection  of  its  application  or  tender.  Under  the  substantive 
public procurement rules, there is only a systematic obligation to inform them that they have 
not been successful whilst the reasons are provided upon request.64 

In  any  event,  the  automatic  debrief  allows  in  practice  contracting  authorities  to  avoid  an 
unduly long standstill period  – in absence of the automatic debrief, and in order to comply 
with  the  Alcatel  jurisprudence,  contracting  authorities  would  need  to  re-start  the  standstill 
period as from the moment the reasons are received by each candidate or tenderer that makes 
the  request.  Additionally,  as  underlined  in  section  7.3.1,  both  contracting  authorities  and 
suppliers  regard  the  provision  on  the  automatic  debrief  as  the  most  relevant  one  in  the 
Remedies Directives (see Figure 11 below). 

Since  other  provisions  of  the  Remedies  Directives  concerning  the  provision  of  information 
are voluntary, the additional administrative burden brought about the Remedies Directive is 
very  limited  and  lies  mainly  with  contracting  authorities.  In  parallel,  the  additional 
information  obligations  increase  the  transparency  of  public  procurement  procedures  and 
openness of the single market.  

As a final point, the successful tenderer in a given award procedure might be affected by the 
use of a review procedure, in particular if the review body does not take a prompt decision. 
However, the potential administrative burden as defined in this subsection that is imposed on 
suppliers is only incidental and was not singled out as a problem by stakeholders during the 
consultations.  

7.2.4.  Conclusions  — efficiency: 

The  Remedies  Directives  provide  overall  benefits  in  line  with  the  intended  impacts,  both 
direct  and  indirect.  There  are  clear  indications  that  the  benefits  achieved  through  the 
Directives outweigh their costs.  The costs to contracting authorities and suppliers of bringing 
forward or defending a review case (including direct and indirect costs) vary widely across 
the EU, typically accounting for 0.4%-0.6% of the contract value. The costs would not reduce 
to zero if the Remedies Directives were repealed. On the contrary, they could be even higher 
because of national differences in the review and remedies rules and a lack of harmonisation 
at the level leading to a more cumbersome context for tenderers and others. 

45; judgment of 13 October 2005 in case C-458/03, Parking Brixen, paragraph 49; judgment of 3 June 1992 in 
case C-360/89, Commission v Italy, paragraph 11; judgment of 11 May 2006 in case C-340/04, Carbotermo 
SpA, paragraph 58. 

64  See  in  particular,  with  regard  to  the  public  sector,  Article  2a  of  Directive  89/665/EEC  as  modified  by 

Directive 2007/66/EC and Article 41 of Directive 2004/18/EC. 

50 

 
 
                                                                                                                                                        
The  benefits  are  important  in  terms  of  sound  financial  management,  the  best  price/quality 
ratio and deterrence, especially when considering the value of invitations to tender published 
in TED. The 2011 evaluation of EU public procurement legislation in general65 estimated that 
savings of 5% realised for the 420 billion of public contracts that were published at EU level 
would translate into savings or higher public investment of over EUR 20 billion a year. The 
effective  implementation  of  the  Remedies  Directives  can  therefore  make  such  estimated 
savings  from  the  Public  Procurement  Directives  more  likely  to  happen.  Finally,  the 
evaluation  did  not  identify  any  administrative  burden  considered  to  be  unnecessary  for  the 
operation of the Remedies Directives. 

7.3. 

Relevance  

Evaluation  questions  to  be  answered:  Are  the  objectives  of  the  Remedies  Directive  still 
relevant  today?  How  has  the  original  need  for  intervention  evolved  in  recent  years?  In 
particular,  is  there  any  reason  to  believe  that  the  initiative  is  no  longer  justified  or  that 
alternative provisions or soft measures are needed? 

The questions on the relevance are addressed from two perspectives: 

(1) 

(2) 

examination of the user’s perceptions of the relevance of the Remedies Directive in 
improving  the  effectiveness  of  review  procedures  concerning  the  award  of  public 
contracts and ensuring better compliance with EU law; and 

examination of the data to determine whether the Remedies Directives, in particular 
following the amendments introduced by Directive 2007/66/EC, are relevant. 

7.3.1. 

Stakeholders’ views on relevance 

Based on the surveys of stakeholders, the Study concludes on the continued relevance of the 
Remedies Directives. Many provisions of the Remedies Directives are perceived as relevant 
across  suppliers,  contracting  authorities  and  legal  practitioners,  with  the  most  relevant 
provision being the ‘automatic debrief’. Some provisions are perceived as less relevant, such 
as those on the Voluntary Ex Ante Transparency Notices (‘VEAT notices’) and penalties. For 
details see Figure 11. 

65 The Evaluation Report on Impact and Effectiveness of EU Public Procurement Legislation, SEC(2011) 853 

final.  

51 

 
                                                 
Figure 11: Relevance of different provisions of the Remedies Directive 

Relevant provisions

Contracting authorities

Suppliers

Do not know

None

4%

5%

Transparency notice

23%

Penalties and shortening

15%

Render awards ineffective

32%

Suspension of procedure

Review time limits

Standstill period

Automatic debrief

Graphs by Respondents

0

100

200

49%

43%

58%

59%

300

500 0
Number (and %) of total respondents

400

7%

13%

13%

15%

41%

41%

30%

29%

55%

100

200

300

400

500

Source: The Study, survey of suppliers and contracting authorities/entities by Europe Economics 

As  the  Study  concludes,  even  if  certain  provisions  are  perceived  as  less  pertinent,  they  are 
still  relevant  because  they  have  a  deterrent  effect.  A  clear  majority  of  respondents  to  the 
public consultation carried out in the context of the Study (more than 80 %) consider that the 
Remedies  Directives  helped  public  procurement  process  to  become  more  compelling  for 
contracting authorities to comply with the requirements of the Procurement Directives. 

The results from the Commission's public consultation concerning the ranking of relevance of 
the provisions in the Remedies Directives (from the most relevant to the least relevant) are 
shown in Figure 12. 

Figure 12: Remedies Directive’s provisions from the most relevant to the least relevant 

Source: Directorate General for Internal Market, Industry, Entrepreneurship and SMEs 

52 

 
 
Based  on  the  results  of  the  Commission’s  public  consultation,  the  standstill  period  was  the 
measure  that  most  respondents  unconditionally  considered  to  be  the  most  relevant  one.  On 
the other hand, alternative penalties were considered by respondents to be the least relevant 
remedy. For details see Annex 3 (replies to questions 9 to 13). 

The  majority  of  Member  States  responses  to  the  Commission’s  questionnaire  perceived 
interim measures, standstill period, alternative penalties, ineffectiveness and damages equally 
relevant to palliate breaches of EU public procurement rules. It was made clear that all these 
measures  combined  provide  for  a  comprehensive  and  effective  system  for  sanctioning 
irregularities in public procurement. Alternative penalties were perceived as less relevant by 
some  Member  States.  The  reason  for  this  is  that  alternative  penalties  constitute  a  simple 
relocation  of  funds  (i.e.  the  punished  contracting  authority  financed  from  the  State  budget 
pays a fine to the same State budget). Damages were perceived as an important means of last 
resort but less relevant. 

Judges from administrative supreme courts considered as the most relevant provisions in the 
Remedies  Directives  the  automatic  debrief  to  unsuccessful  tenderers  and  the  ensuing 
standstill period during which contracting authorities cannot conclude the contract. 

Representatives of first instance specialised administrative review bodies that participated in 
the  meeting  held  in  Brussels  on  30 September  2015  also  underlined  that  the  Remedies 
Directives are useful and had improved the remedy system in their respective Member States. 

Notwithstanding this, the results of the Study show that perceptions of continuing problems 
exist  in  addressing  breaches  in  procurement  law  among  some  participants  to  the  surveys 
(particularly from suppliers). There is also some evidence of a perceived lack of trust in the 
procurement process and a perceived lack of transparency in public procurement in general. 
These perceptions suggest that continuing efforts are required to achieve the benefits of the 
Procurement Directives. The Remedies Directives are thus relevant in enabling procurement 
law breaches to be challenged and in promoting a more efficient and transparent procurement 
market. 

The  Commission  departments’  public  consultation  show  that  62.94 %  of  respondents 
consider that there are still problems in addressing breaches in EU public procurement law, 
whereas  30.59 %  of  respondents  do  not  see  such  problems.  In  general,  those  who  still  saw 
problems  gave  at  the  same  time  examples  of  how  the  situation  could  be  improved  by  the 
Remedies  Directives.  This  can  be  interpreted  in  the  sense  that  stakeholders  perceive  the 
Remedies Directives as a relevant vehicle to address infringements of EU Public Procurement 
law. For details see Annex 3 (replies to question 20). 

7.3.2.  Actual usage of the provisions 

As  mentioned,  in  the  introduction  to  this  section,  another  indicator  of  the  relevance  of  the 
Remedies Directives is the actual usage of provisions they provide. 

As  the  Study  indicates,  there  were  around  50 000  first  instance  decisions  across  Member 
States during the period 2009-2012. 

During the same period, there were also 10 103 second instance decisions made (for Member 
States where information was available).66 

66 CZ, CY, DE, DK, EE, HU, IE, LT, LU, RO, SE, SI. 

53 

 
 
                                                 
 
Finally, as mentioned in section 6.6, there were more than 57 000 VEAT notices published 
across EU-28 for the period 2010-2015. The majority of VEAT notice usage was by France 
(37 226 contracts), followed at a distance by Poland (5 453), the United Kingdom (3 256) and 
Denmark (2 504). After the entry into force of the provisions, the uptake of VEAT notices by 
the market was immediate and remains stable at around 10 000 notices per year. 

7.3.3.  Conclusions —  relevance: 

The  objectives  of  the  Remedies  Directives  are  still  relevant.  The  evaluation  revealed  that 
many  provisions  of  the  Directives  are  perceived  as  relevant  across  suppliers,  contracting 
authorities  and  legal  practitioners.  Based  on  replies  to  the  public  consultation,  the  most 
relevant provision appears to be the standstill period (65% of respondents), followed by the 
suspension of the contract award procedure where review proceedings are initiated (62%) and 
the  automatic  debrief  to  tenderers  (58%).  Even  if  certain  provisions  are  perceived  to  be  of 
less  practical  value,  they  still  contribute  to  the  deterrent  effect  of  the  Remedies  Directives. 
Another  indicator  of  the  relevance  of  the  Remedies  Directives  is  the  actual  use  of  the 
procedures  they  provide.  In  general,  the  remedies  provided  are  frequently  used  in  most 
Member  States.  There  were  around  50  000  first  instance  decisions  across  Member  States 
during 2009-2012. The most frequently type of remedy sought is set-aside decision, followed 
at some distance by interim measures and the removal of discriminatory specifications. 

7.4. 

Coherence with other policies 

Evaluation questions to be answered: To what extent are the Remedies Directives consistent 
with other policy objectives at EU and national level? 

Open  and  well  regulated  procurement  markets  are  expected  to  contribute  to  a  better  use  of 
public  resources,  with  the  intention  of  improving  the  quality  and/or  lowering  the  price  of 
purchase  made  by  contracting  authorities.  The  experience  acquired  with  the  Procurement 
Directives  showed  that  they  could  not  realise  completely  their  objectives  if  economic 
operators were unable to effectively ensure that the rights given them by them were observed 
everywhere in the EU. 

Consequently, the Remedies Directives were adopted as flanking measures aimed at ensuring 
that economic operators everywhere in the EU would have minimum procedural guarantees 
to  access  to  clear,  rapid  and  effective  procedures  for  seeking  redress  in  cases  where  they 
consider contracts had been awarded in breach of Procurement Directives. This was, and is, 
crucial to making sure that contracts ultimately go to the company which has made the best 
offer,  and  therefore  to  building  confidence  among  businesses  and  the  public  that  public 
procurement procedures are fair. 

In this context, remedies are indispensable to ensure the overall enforcement of substantive 
public procurement rules. Increased levels of enforcement of the law increase the incentives 
of  contracting  authorities  to  comply  with  the  law  (deterrent  effect),  thus  helping  that  the 
markets remain open and competitive. 

The Remedies Directives were generally aligned with the new legislative package on public 
procurement  adopted  in  2014,  in  particular  to  cover  the  concession  contracts  subject  to 
Directive 2014/23/EU. Notwithstanding this, the operation of the Remedies Directives in the 
context  of  the  new  legislative  context  may  need  some  interpretative  support.  In  particular, 
and  as  confirmed  by  various  stakeholders  who  expressed  their  views  in  the  context  of  this 
evaluation, enforcement of the new rules on modification and termination of public contracts 
and  concession  contracts  and  the  application  of  the  Remedies  Directives  to  the  so-called 

54 

 
"light regime" under the new substantive public procurement rules could be explained by the 
Commission. 

As already indicated, Article 47 of the Charter of Fundamental Rights of the European Union 
and Article 6 of the European Convention on Human Rights enshrine the right to an effective 
remedy. In this respect, the Court has found that the right to an effective remedy is a general 
principle  of  EU  law.67  Furthermore,  Article  19(1)  of  the  Treaty  on  European  Union  states 
that: ‘Member States shall provide remedies sufficient to ensure effective legal protection in 
the  fields  covered  by  Union  law’68.  In  the  light  of  this,  the  Remedies  Directives  are  in  line 
with the rights and general principles laid down in EU primary law concerning fundamental 
rights. 

The  Court  has  also  acknowledged  that  the  Remedies  Directives  give  specific  expression  to 
the  general  principle  enshrining  the  right  to  an  effective  remedy  in  the  particular  field  of 
public  procurement69.  It  is  true  that  there  is  limited  EU  secondary  legislation  laying  down 
review  procedures  in  specific  areas70.  This  fact,  however,  is  not  a  sign  of  incoherence  –  it 
merely  shows  that  the  EU  legislature  has  considered  that  certain  areas,  on  account  of  their 
specificities,  cannot  rely  exclusively  on  EU  primary  law  or  in  existing  national  procedural 
systems.  The  specificities  in  the  public  procurement  area  (e.g.  potential  for  persistent 
breaches  of  EU  law,  need  to  obtain  a  timely  decision  and  economic  importance)  are 
explained below, in section 7.5. 

Finally,  by  improving  the  effectiveness  of  national  review  procedures,  especially  those 
dealing  with  illegal  direct  awards  of  contracts,  the  Remedies  Directives  play  an  important 
role  in  tackling  effectively  breaches  of  Procurement  Directives  that  could  also  entail 
irregularities with criminal implications. 

The evaluation has not found any possible conflicts with other policy fields. 

Conclusions — coherence with other EU policies: 

The Remedies Directives are coherent with other EU policies. As confirmed by the Court, the 
right  to  an  effective  remedy  is  a  general  principle  of  EU  law.  In  the  light  of  this,  the 
Remedies  Directives  are  in  line  with  the  rights  and  general  principles  laid  down  in  EU 
primary law concerning fundamental rights. The Remedies Directives lie at the core of public 
procurement legislation as they allow bidders to enforce their substantive rights. They were 
found to be generally aligned with the new 2014 legislative package on public procurement, 
in particular to cover the concession contracts subject to Directive 2014/23/EU. Nonetheless, 
as  already  mentioned  in  section  referring  to  effectiveness  of  the  Remedies  Directives,  the 
interplay  between  these  Directives  and  the  new  legislative  package  on  public  procurement 
could  be  further  clarified.  Finally,  by  improving  the  effectiveness  of  national  review 
procedures,  especially  those  dealing  with  illegal  direct  awards  of  contracts,  the  Remedies 
Directives  also  play  an  important  role  in  effectively  tackling  breaches  of  Procurement 
Directives that could also entail irregularities with criminal implications. The evaluation has 
not found any possible conflicts with other policy fields, but rather the contrary. 

67 Vanbreda, paragraph 28. 
68 See also the judgment of 19 November 2014 in case C‑404/13 ClientEarth, paragraph 52. 
69 Vanbreda, paragraph 28. 
70 An example, in the field of environment, is Public Participation Directive 2003/35/EC, which gives rights of 
access  to  justice  in  relation  to  environmental  impact  assessment  and  integrated  pollution  prevention  and 
control. 

55 

 
                                                 
7.5. 

The EU added value 

Evaluation questions to be answered: What is the ongoing added value of EU legislation in 
this  field?  What  would  be  the  effects  if  the  Remedies  Directive  were  to  be  withdrawn  and 
Member  States  were  free  to  adjust  their  national  regulatory  frameworks?  Would  these 
benefits have been achieved in the absence of the Directives? 

As  mentioned  previously,  the  Remedies  Directives  do  not  intend  to  fully  harmonise  the 
remedies systems in the area of public procurement, in line with the competences conferred 
upon  the  EU  in  this  field  by  Member  States.  The  Remedies  Directives  lay  down  only  ‘the 
minimum conditions to be satisfied by the review procedures established in domestic law to 
ensure  compliance  with  the  requirements  of  EU  law  concerning  public  procurement71’.  In 
fact,  the  Remedies  Directives  frame  the  principle  of  national  procedural  autonomy  of 
Member States so as to ensure the effective enforcement of EU public procurement rules at 
national level.  

It  is  generally  conceded  by  all  the  sources  used  to  prepare  this  evaluation  that  it  is  very 
importance  to  have  a  specific  system  of  remedies  in  public  procurement.  Substantive  EU 
public procurement law is too complex and ordinary courts under ordinary procedural codes 
cannot  guarantee  rapid  and  effective  review  as  required  by  the  case-law  of  the  Court.  For 
instance,  before  a  mandatory  standstill  period  was  introduced,  no  interim  measure  before 
ordinary courts was rapid enough to suspend conclusion of the awarded contract. 

In  general,  stakeholders  expressed  the  view  that  the  system  of  remedies  could  not  be  left 
solely  to  Member  States  under  the  principle  of  national  procedural  autonomy  because  all 
bidders in the EU should benefit from at least a minimum level of protection. In particular, 
judges  from  supreme  administrative  courts  admitted  that  before  the  Remedies  Directives 
were  amended  by  Directive  2007/66/EC,  it  was  impossible  to  challenge  the  outcome  of 
public procurement. This was reflected in a relatively low number of cased launched before 
2009,  as  argued  in  the  impact  assessment  report  prior  to  the  adoption  of  Directive 
2007/66/EC.72 

In  the  same  token,  national  procedural  rules  before  the  adoption  of  Directive  2007/66/EC 
(which  codified  the  most  important  findings  of  the  Alcatel  ruling73)  were  not  sufficient  to 
ensure  compliance  with  the  substantive  public  procurement  rules  by  contracting  authorities 
since  they  did  not  prevent  the  ‘race  to  signature‘.  Even  when  Member  States  started 
introducing their own standstill periods as result of the Alcatel ruling, the solutions adopted 
were too divergent and could not ensure a level playing field for economic operators in the 
EU. According to an OECD study of 200774, the differences in standstill periods before the 
entry into application of Directive 2007/66/EC ranged from 7 to 30 days (Table 11). 

71 Judgment of the Court of Justice of 30 September 2010 in case C-314/09 Strabag AG, paragraph 33.  
72  Impact  Assessment  Report  —  Remedies  in  the  field  of  public  procurement,  Commission  Staff  Working 

Document, SEC(2006)557. 

73 See section 3.2.1 of this Staff Working Document. 
74 OECD (2007), ‘Public Procurement Review and Remedies Systems in the European Union’, SIGMA Papers, 

No 41, OECD Publishing. http://dx.doi.org/10.1787/5kml60q9vklt-en 

56 

 
 
 
 
                                                 
Table 11: Standstill periods between the award decision and the conclusion of the contract (in days) 

Austria 
Bulgaria 
Czech Republic 
Denmark 
Estonia 
Finland 
France 
Germany 
Hungary 
Ireland 
Italy 

7 or 14 
10 
15 
7 to 10 
14 
21 or 28 
10 
14 
8 
14 
30 

Lithuania 
Luxemburg 
Malta 
Netherlands 
Poland 
Portugal 
Romania 
Slovakia 
Slovenia 
Sweden 

10 
15 
10 
15 
7 
10 
15 
14 
20 
10 

Source: OECD (2007), “Public Procurement Review and Remedies Systems in the European Union”, SIGMA Papers, No. 41, 
OECD Publishing. http://dx.doi.org/10.1787/5kml60q9vklt-en 

Furthermore, before the remedy of ineffectiveness was introduced by Directive 2007/66/EC 
there  were  no  instruments  at  national  level  that  would  encourage  Member  States  to  tackle 
direct  awards.  This  can  be  evidenced  by  the  judgment  of  the  Court  in  case  C-503/04, 
Commission v Germany75. After the Court concluded that contracts in a waste management 
sector were awarded illegally, Germany sent a letter to the municipality concerned asking it 
to ensure compliance with the public procurement legislation in force and to notify it of the 
measures intended to prevent similar infringements in future.  Notwithstanding this, without 
the risk of a contract being considered ineffective, the enforcement leverage was limited. 

All the elements above confirm that the Remedies Directives add value to the single market 
because of the minimum level of harmonisation that they ensure. In those conditions, bidders 
can expect the minimum level of protection across the EU. 

On another level, infringement procedures launched by the Commission under Article 258 of 
the  TFEU  are  not  sufficient  to  ensure  compliance  with  the  substantive  public  procurement 
rules  by  contracting  authorities.  Indeed,  the  Commission  cannot  pursue  each  and  every 
infringement of EU public procurement rules identified in the Member States. Compared to 
other fields of EU intervention, public procurement rules have certain specificities (some of 
which may also be present in other areas of EU law): 

As  long  as  the  contract  is  above  the  EU  thresholds,  the  substantive  public 

(1) 
procurement rules are applicable, irrespective of cross-border interest. 

(2) 
Even  in  the  presence  of  perfectly  EU-compliant  national  legislation,  in  only  one 
tendering  procedure  conducted  by  only  one  contracting  authority  there  is  a  substantial 
potential for  numerous infringements (e.g. unlawful exclusion of tenderers, unlawful tender 
specifications,  unlawful  contract  award  criteria,  use  of  the  wrong  procedures,  accepting 
abnormally  low  tenders,  conflict  of  interests,  etc.)  which  cannot  be  all  considered  by  the 
Commission in the context of Article 258 TFEU procedures. 

(3) 
The Commission does not have the expertise necessary to take decisions concerning 
the technical aspects of many public contracts when they could be suspected of a breach of 
EU public procurement rules. 

(4) 
Infringement  procedures  are  not  intended  to  protect  bidders’  rights,  but  rather  to 
ensure future systematic Member State compliance with EU public procurement legislation. 
The  ruling  under  Article  258  TFEU  is  primarily  declaratory  for  the  non-compliance. 

75 See footnote 25. 

57 

 
  
  
 
                                                 
Moreover, the procedure under Article 258 TFEU is lengthy and the time factor is essential in 
public procurement review. 

(5) 
The  national  public  procurement  activity covered  by  EU  rules  involves  a  very  large 
amount of national and, in some cases, EU funds. The result is that direct rights of recourse 
for parties participating in public tenders under  EU substantive public procurement rules are 
indispensable for the proper functioning of those rules and for the proper functioning of the 
single market for economic operators taking part in tendering procedures.  

Member States responses to the Commission’s questionnaire considered access to justice one 
of the cornerstones of the rule of law. Member States were of the opinion that in the absence 
of  the  Remedies  Directives,  it  would  still  be  necessary  to  protect  bidders’  individual  rights 
due to the right to a fair trial and the right to a tribunal according to Article 6 of the European 
Convention on Human Rights and their constitutional laws. 

Moreover, the principles laid down in the TFEU also require Member States to guarantee a 
minimal  level  of  protection  of  bidders'  individual  rights  in  the  context  of  contract  award 
procedures.  Nonetheless,  it  was  made  clear  by  Member  States  that  in  the  absence  of  the 
Remedies  Directives,  the  effectiveness  of  the  protection  of  the  bidders’  individual  rights 
would not be fully guaranteed. The added value of the Remedies Directives is that they allow 
bidders  to  submit  the  request  for  review  before  the  conclusion  of  public  contracts,  when 
infringements  can  still  be  corrected.  A  minimum  level  of  harmonisation  at  EU  level,  as 
guaranteed by the Remedies Directives, presents therefore an added value. 

Conclusions — the EU added value: 

The Remedies Directives present a clear EU added value. It was generally confirmed by all 
sources of information used for the purposes of the evaluation that it is of utmost importance 
to  have  EU  law  requirements  for  remedies  in  public  procurement.  Ordinary  courts  under 
ordinary  procedural  codes  cannot  guarantee  rapid  and  effective  review  as  required  by  EU 
case-law.  For  instance,  before  a  mandatory  standstill  period  was  introduced  by  Directive 
2007/66/EC,  no  interim  measure  before  ordinary  courts  was  rapid  enough  to  suspend 
conclusion of the awarded contract.  

Compared  with  other  fields  of  EU  law,  public  procurement  rules  have  certain  specificities. 
Firstly, as long as the contract is above the EU thresholds, the substantive public procurement 
rules  are  applicable,  irrespective  of  cross-border  interest.  Secondly,  in  each  tendering 
procedure  conducted  by  any  contracting  authority/entity  there  is  a  significant  potential  for 
numerous infringements (e.g. unlawful exclusion of tenderers, unlawful tender specifications, 
unlawful  contract  award  criteria,  use  of  the  wrong  procedures,  accepting  abnormally  low 
tenders, conflict of interests, etc.) The role of the Commission, when dealing with individual 
complaints and potential infringements of EU law, is directed to ensuring future systematic 
respect for EU law, rather than obtaining remedies for individual parties to public tendering 
procedures  particularly  given  the  large  volume  of  contracting  authorities,  tenderers  and 
procedures in the EU and the technicalities involved in each individual process. 

Suitable  rights  of  direct  recourse  for  bidders  are  therefore  indispensable  for  the  correct 
functioning of substantive public procurement rules and for the proper operation of the single 
market in the public sector. As confirmed by numerous stakeholders, the minimum level of 
harmonisation ensured by Remedies Directives is absolutely essential in this respect. 

58 

 
8. 

CONCLUSIONS 

Based  on  the  evaluation,  the  Commission  concludes  that  the  Remedies  Directives,  in 
particular amendments introduced by Directive 2007/66/EC, largely meet their objectives in 
an  effective  and  efficient  way  although  it  has  not  been  possible  to  quantify  the  concrete 
extent of their cost/benefits. Even if specific concerns are reported in some Member States, 
they usually stem from national measures and not from the Remedies Directives themselves. 
In  general  qualitative  terms,  the  benefits  of  the  Remedies  Directives  outweigh  their  costs. 
They remain relevant and continue to bring EU added value.  

Despite  the  overall  positive  conclusion  of  the  evaluation,  certain  shortcomings  were 
identified, in particular as regards the clarity of some provisions and the availability of data. 
Data for remedies actions on public contracts above thresholds brought in each Member State 
are not collected in a structured, coherent and systemic manner that would allow comparing 
the results obtained. For this reason, the proper measurement or estimation of the effects of 
the Remedies Directives is more difficult. 

Based on the information gathered in this evaluation, the report from the Commission to the 
European  Parliament  and  the  Council  on  the  effectiveness  of  Directive  89/665/EEC  and 
Directive 92/13/EEC, as modified by Directive 2007/66/EC, concerning review procedures in 
the  area  of  public  procurement  to  which  this  document  accompanies,  draws  the  necessary 
operational conclusions and proposes relevant paths of action. 

59 

 
 
ANNEX  1  —  CASE-LAW  CONCERNING  REMEDIES  IN  THE  AREA  OF  PUBLIC 
PROCUREMENT 

Judgment of 24 January 1995 in case C-359/93, Commission v Netherlands 

Judgment of 17 September 1997 in case C-54/96, Dorsch Consult 

Judgment of 15 January 1998 in case C-44/96, Mannesmann Anlagenbau Austria 

Judgment of 24 September 1998 in case C-76/97, Tögel 

Judgment of 24 September 1998 in case C-111/97, EvoBus Austria 

Judgment of 17 December 1998 in case C-353/96, Commission v Ireland 

Judgment of 4 February 1999 in case C-103/97, Köllensperger and Atzwanger  

Judgment of 4 March 1999 in case C-258/97, HI 

Judgment of 19 May 1999 in case C-225/97, Commission v France 

Judgment of 28 October 1999 in case C-81/98, Alcatel Austria 

Judgment of 18 November 1999 in case C-275/98, Unitron Scandinavia and 3-S 

Judgment of 18 June 2002 in case C-92/00, HI 

Judgment of 12 December 2002 in case C-470/99, Universale-Bau 

Judgment of 23 January 2003 in case C-57/01, Makedoniko Metro and Michaniki 

Judgment of 27 February 2003 in case C-327/00, Santex 

Judgment of 10 April 2003 in joined cases C-20/01 and C-28/01, Commission v Germany 

Judgment of 15 May 2003 in case C-214/00, Commission v Spain 

Judgment of 19 June 2003 in case C-249/01, Hackermüller 

Judgment of 19 June 2003 in case C-315/01, GAT 

Judgment of 16 October 2003 in case C-283/00, Commission v Spain 

Judgment of 19 June 2003 in case C-410/01, Fritsch, Chiari & Partner  

Judgment of 4 December 2003 in case C-448/01, EVN and Wienstrom 

Judgment of 12 February 2004 in case C-230/02, Grossmann Air Service 

Judgment of 18 March 2004 in case C-314/01, Siemens and ARGE Telekom 

Judgment of 24 June 2004 in case C-212/02, Commission v Austria 

Judgment of 11 January 2005 in case C-26/03, Stadt Halle and RPL Lochau 

Judgment of 3 March 2005 in case C-21/03, Fabricom 

Judgment of 3 March 2005 in case C-34/03, Fabricom 

Judgment of 2 June 2005 in case C-394/02, Commission v Greece 

Judgment of 2 June 2005 in case C-15/04, Koppensteiner 

Judgment of 8 September 2005 in case C-129/04, Espace Trianon and Sofibail 

Judgment of 18 July 2007 in case C-503/04, Commission v Germany  

Judgment of 11 October 2007 in case C-241/06, Lämmerzahl 

60 

 
 
Judgment of 10 January 2008 in case C-70/06, Commission v Portugal 

Judgment of 14 February 2008 in case C-450/06, Varec 

Judgment of 3 April 2008 in case C-444/06, Commission v Spain 

Judgment of 21 May 2008 in case T-495/04, Belfass v Council 

Judgment of 19 June 2008 in case C-454/06, pressetext Nachrichtenagentur  

Order of 2 July 2009 in case T-279/06, Evropaïki Dynamiki v ECB 

Judgment of 12 November 2009 in case C-199/07, Commission v Greece 

Judgment of 23 December 2009 in case C-455/08, Commission v Ireland 

Judgment of 28 January 2010 in case C-406/08, Uniplex 

Judgment of 28 January 2010 in case C-456/08, Commission v Ireland 

Judgment of 9 March 2010 in case C-378/08, ERG 

Judgment of 6 May 2010 in case C-145/08, Club Hotel Loutraki 

Judgment of 6 May 2010 in case C-149/08, Aktor A.T.E. 

Judgment of 20 May 2010 in case T-258/06, Germany v Commission 

Judgment of 30 September 2010 in case C-314/09, Strabag 

Judgment of 21 October 2010 in case C-570/08, Symvoulio Apochetefseon Lefkosias 

Judgment  of  9 December  2010  in  case  C-568/08,  Combinatie  Spijker  Infrabouw-De  Jonge 
Konstruktie 

Judgment of 3 March 2011 in case T-589/08, Evropaïki Dynamiki v Commission 

Judgment of 29 March 2011 in case T-33/09, Portugal v Commission 

Judgment of 9 June 2011 in case C-401/09 P, Evropaïki Dynamiki v ECB  

Judgment of 10 November 2011 in case C-348/10, Norma-A and Dekom 

Judgment of 12 July 2012 in case T-476/07, Evropaïki Dynamiki v Frontex 

Judgment of 4 July 2013 in case C-100/12, Fastweb 

Judgment of 15 January 2014 in case C-292/11 P, Commission v Portugal  

Judgment of 8 May 2014 in case C-161/13, Idrodinamica Spurgo Velox  

Judgment of 23 May 2014 in case T-553/11, European Dynamics Luxembourg v ECB 

Judgment of 11 September 2014 in case C-19/13, Fastweb 

Judgment of 11 December 2014 in case C-440/13, Croce Amica One Italia 

Judgment of 12 March 2015 in case C-538/13, eVigilo 

Order of 23 April 2015 in case C-35/15 P(R), Commission v Vanbreda Risk & Benefits 

Judgment of 6 October 2015 in case C-61/14, Orizzonte Salute 

Judgment of 6 October 2015 in case C-203/14, Consorci Sanitari del Maresme 

Judgment of 26 November 2015 in case C-166/14, MedEval 

Judgment of 17 December 2015 in case C-25/14, UNIS 

61 

 
Order of 7 April 2016 in case C‑495/14, Tita  

Judgment of 15 September 2016 in case C-488/14, Star Storage 

62 

 
ANNEX 2 — SYNOPSIS REPORT OF CONSULTATION ACTIVITIES  

The  main  objective  of  the  consultation  activities  was  to  gather  expertise,  opinions  and 
evidence on the Remedies Directives' functioning. 

1. Consultation activities carried out: 

Open online public consultation carried out by the Commission departments 

The Commission departments carried out an open online public consultation (the ‘EC public 
consultation’) which aimed to collect evidence on the Remedies Directives' functioning and 
added  value.  This  consultation  was  open  from  24  April  to  20  July  2015  and  yielded  170 
responses  coming  from  all  EU  Member  States.  The  consultation  involved  contracting 
authorities and entities, economic operators, academics, lawyers, review bodies and citizens - 
the share of responses coming from different categories of stakeholders is presented in Figure 
13. 

Figure 13: The share of responses to public consultation by participant’s category 

Source: DG for Internal Market, Industry, Entrepreneurship and SMEs  

Overall, 63% of the respondents declared that they have been involved in public procurement 
litigation over the last five years.  

Targeted consultations 

In  addition  to  the  open  public  consultation,  the  Commission  departments  also  collected 
feedback from stakeholders via targeted / close audience consultations. The findings of these 
consultations  were  extensively  used  throughout  the  current  evaluation  Staff  Working 
Document and, whenever relevant, the input was marked with quotes and references. 

1.1. Consultations with Member States 

Based on the results of the Study, on 15 October 2015 the Commission consulted government 
experts on public procurement from Member States via the Commission Government Expert 

63 

 
 
 
Group  on  Public  Procurement.  As  a  follow  up  of  this  meeting,  the  Commission  asked 
Member States two sets of questions:  

i. 

ii. 

questions related to the functioning of the Remedies Directives at national level; and 

questions on the overall effectiveness of the Remedies Directives.  

The  Commission  received  16  replies  from  Austria,  Germany,  Finland,  Estonia,  France, 
Croatia,  Hungary,  Italy,  Latvia,  Lithuania,  the  Netherlands,  Poland,  Slovenia,  Slovakia, 
Sweden, the UK. Norway also provided replies.  

The content of the detailed questionnaire is provided in Annex 3. 

1.2. Consultations with experts and practitioners 

Within  the  context  of  this  evaluation,  a  number  of  targeted  consultations  with  experts  and 
practitioners in public procurement litigation have been carried out, namely:  

•  as part of the Study, a total of 616 and 832 responses, from suppliers and contracting 
authorities  respectively,  were  collected  in  relation  to  the  functioning  of  national 
remedies systems; the responses covered the majority of Member States, although few 
or no responses were obtained from Latvia, Luxembourg and Croatia; additionally, a 
total of 112 responses from legal practitioners were received across all Member States, 
except Poland and Portugal;  

•  meeting  of  Commission  Stakeholder  Expert  Group  on  Public  Procurement  held  in 

Brussels on 23 February 2015;  

•  meeting  with  11  first  instance  specialised  administrative  review  bodies  held  in 

Brussels on 30 September 2015; 

•  meeting  with  supreme  administrative  judges  via  the  'Association  of  the  Council  of 
States  and  Supreme  Administrative  Jurisdictions  of  the  European  Union'  held  in 
Helsinki on 22-23 October 2015. 

2. Results - Summary of the open online consultation and meetings  

Open online public consultation  

The online public consultation allowed all interested parties to express their view about the 
functioning of the Remedies Directives. However, despite being public, the consultation only 
received 170 replies (see figure 13 in this annex for the share of responses by participant’s 
category). This relatively low number of replies might be explained by the technical nature of 
the Remedies Directives.  

Overall,  some  general  conclusions  could  be  drawn  from  the  predominant  replies  to  the 
questions asked (the percentages are indicated in brackets): 

-  Respondents  were  of  the  opinion  that  the  Remedies  Directives  have  had  a  positive 
effect on the public procurement process, making it more transparent (80.59%), fairer 
(79.42%), more open and accessible (77.65%) and more compelling to comply with 
EU substantive public procurement rules (81.77%).  

-  They considered that the Remedies Directive evenly balance the interest of economic 
operators in ensuring the effectiveness of public procurement law and the interest of 
contracting authorities in limiting frivolous litigation (57.06%). 

-  The provision most relevant to respondents was the standstill period (65%), followed 
by  the  suspension  of  the  contract  award  procedure  where  review  proceedings  are 
initiated (62%) and the automatic debrief to tenderers (58%); alternative penalties, in 
turn, are the least relevant remedy (27%). 

64 

 
-  Respondents  indicated  that  the  procedures  before  ordinary  courts  take  longer  and 
result  in  lower  standards  of  adjudication  than  the  procedures  before  specialised 
administrative review bodies (74%).  

-  According to respondents, the procedure in first instance often takes up to 1 month in 
the case of interim measures (42.35%), between 1 and 3 months for the setting aside 
of  decisions  and  for  ineffectiveness  (32.35%)  and  more  than  a  year  for  damages 
(22.94%).  

-  Respondents  were  of  the  view  that  the  costs  of  review  procedures,  albeit  very 
divergent across Member States, in most of the cases do not have decisive dissuasive 
effect on the access to remedies (50.59%). 

-  Nevertheless,  some  problems  in  addressing  breaches  in  EU  public  procurement  law 
are  still  present  (62.94%).  Respondents  indicated  that  some  problems  identified  are 
rooted  either  in  national  legislation  beyond  the  Remedies  Directives  or  in  national 
practices rather than stem from the Remedies Directives.  

Meeting of the Commission Stakeholder Expert Group on Public Procurement76 

The meeting was held in Brussels on 23 February 2013. 

The  members  of  the  Experts  Group  underlined  that  it  is  of  utmost  importance  to  have  a 
specific  system  of  remedies  in  public  procurement  because  substantive  public  procurement 
law  is  too  complex  and  ordinary  courts  under  ordinary  procedural  codes  cannot  guarantee 
rapid  and  effective  review  as  required  by  EU  Court  case-law.  For  instance,  before  a 
mandatory  standstill  period  was  introduced  no  interim  measure  before  ordinary  courts  was 
rapid enough to suspend conclusion of the awarded contract. The system of remedies cannot 
be  left  for  Member  States  under  the  principle  of  national  procedural  autonomy  because  all 
bidders in the EU should benefit from the same level of minimum protection. 

The  advantages  of  administrative  review  bodies  over  judicial  ones  in  terms  of  delays  and 
costs were mentioned. The example of Scotland was given where a procurement tribunal was 
set up and turned out to be quicker and less expensive than ordinary court proceedings. It was 
suggested that Member States could be encouraged to set up such tribunals that would have 
jurisdiction to consider only claims that arise before the conclusion of a contract where the 
rapidity of review decisions is of a particular importance. 

It was concluded that pre-contractual remedies (setting aside of decisions) are more effective 
than  post-contractual  remedies  (damages,  ineffectiveness).  With  regard  to  damages,  experts 
underlined  that  it  is  notoriously  difficult  to  seek  damages  in  most  Member  States,  mostly 
because of the need to prove that the economic operator was genuinely a tenderer who had a 
serious chance of winning the contract. Nonetheless, it was underlined that damages present a 
less attractive or efficient means of sanction than pre-contractual remedies because economic 
operators are interested in being awarded a contract and not in compensation. 

Inconsistency of decisions of first instance review bodies was also mentioned by experts as a 
problem in many Member States. 

The  discussion  also  revealed  the  lack  of  clarity  with  regard  to  the  lifting  of  a  statutory 
automatic  suspension  of  contract  conclusion  once  the  application  for  review  is  lodged  with 

76  The  Expert  Group  is  composed  of  20  public  procurement  experts.  The  task  of  the  group  is  to  provide  the 
Commission with high quality legal, economic, technical and/or practical insight and expertise with a view to 
assisting it in shaping the public procurement policy of the Union. 

65 

 
 
                                                 
the review body. In some Member States it is possible to lift this automatic suspension. For 
example,  because  of  the  liberal  test  applied  by  the  UK  courts  it  is  very  easy  to  obtain  the 
lifting of automatic suspension in that Member State. This approach is problematic form the 
point  of  view  of  the  effectiveness  of  pre-contractual  remedies  because  once  the  contract  is 
signed, the bidder is left with post-contractual remedies only (damages and ineffectiveness). 
In  Germany,  on  the  contrary,  it  is  difficult  to  obtain  the  lifting  of  a  statutory  automatic 
suspension. It was suggested that there should be more consistency across Member States in 
this respect. 

Meeting with First Instance Specialised Administrative Review Bodies  

The  meeting  was  held  in  Brussels  on  30  September  2015  with  first  instance  specialised 
administrative review bodies. 

11 Member States participated (Croatia, Spain, Poland, Malta, Slovakia, Denmark, Slovenia, 
Estonia, Romania, Cyprus, Hungary). 

The purpose of the meeting was to gather views on the Remedies Directives' functioning and 
on  possible future cooperation from specialised administrative review bodies adjudicating in 
first instance in public procurement cases. 

Participants confirmed that the Remedies Directives, in particular amendments introduced in 
Directive 2007/66/EC, are useful and have improved the review systems in Member States. 
There  was  consensus  among  participants  that  at  present  there  is  no  need  to  modify  the 
Directives.  Specific  problems  related  to  remedies  result  from  national  implementing 
measures  and  national  approach  to  enforcement  rather  than  from  the  Directive.  However, 
according  to  the  participants,  further  guidance  from  the  Commission  (e.g.  on  fees, 
independence of the review bodies) would be useful. Soft law from the Commission would 
also help to improve and strengthen national systems. Participants underlined that it would be 
very  useful  to  establish  a  network  of  first  instance  administrative  review  bodies  in  order  to 
share best practice and to exchange views between them on a regular basis. 

Participants indicated that special administrative bodies were established because they offer 
faster review compared to general courts - time length for the review procedures varies from 
4 months (Denmark) to 15 days (Poland). The success rate of appeals from decisions of first 
instance review bodies is low, which proves the seriousness of the work carried out in first 
instance by these bodies. 

Meeting with the Supreme Administrative Court Judges 

The  meeting  took  place  on  22-23  October  2015  in  Helsinki  during  the  conference  "Recent 
case-law  of  the  Court  of  Justice  of  the  European  Union  and  of  the  (Supreme) 
Administrative Courts in public procurement litigation", organised by the 'Association of 
the Council of States and Supreme Administrative Jurisdictions of the European Union' and 
the Supreme Administrative Court of Finland. 

The purpose of the meeting was to gather views from the supreme administrative court judges 
on the Remedies Directives' functioning and their future. 

The feedback on the relevance and the effectiveness of the Remedies Directives as amended 
by  Directive  2007/66/EC  was  positive.  In  particular,  judges  mentioned  that  before  the 
standstill  period  between  the  award  decision  and  the  conclusion  of  the  contract  was 
introduced  by  Directive  2007/66/EC,  it  was  impossible  to  challenge  the  outcome  of  public 
procurement  as  no  interim  measure  was  rapid  enough  to  suspend  the  conclusion  of  the 
awarded contract. Automatic debrief to unsuccessful tenderers and the standstill period were 
mentioned as the most effective and relevant provisions in the Remedies Directives. 

66 

 
It was underlined that it is difficult to bring actions for damages in Member States. Member 
States'  legal  systems  differ  on  the  test  of  causation  and  recoverable  losses.  In  particular,  in 
most cases it is practically impossible for the plaintiff to prove that it had genuine chances to 
win  the  contract  if  the  public  procurement  rules  had  been  complied  with.  Increased 
harmonisation in this field would be of added value.  

Participants also underlined that the lifting of the automatic suspension of the conclusion of 
the contract following the lodging of a legal action and in particular, the criteria to be applied 
by courts to lift the suspension, could be clarified at EU level. 

Some isolated problems with enforceability of judgments were mentioned by participants. It 
was  also  underlined  that  EU  law  could  provide  some  guidance  on  how  to  ensure 
confidentiality of documents during the review procedure. Participant underlined that parties 
must  enjoy  the  right  to  a  fair  hearing  while  respecting  at  the  same  time  the  protection  of 
commercial secrets. 

Consultations with Member States 

Member States were asked on 15 October 2015 several questions related to the functioning of 
the  Remedies  Directives  at  national  level  and  to  the  overall  effectiveness  of  the  Remedies 
Directives (e.g. the length of review procedures, costs and their impact on access to justice, 
the  Remedies  Directives'  EU  added  value,  problems  in  addressing  breaches  in  EU  public 
procurement  law,  how  to  improve  the  functioning  of  the  remedies  systems  in  Member 
States). 

Whereas the length of review procedures is diverse in Member States, Member States do not 
identify any examples of the remedy system causing delays in the award of public contracts 
or  only  exceptionally  identify  such  delays.  Neither  of  Member  States  that  replied  to  the 
questionnaire  identified  systematic  abuses  of  appeals  to  the  detriment  of  the  timely 
functioning of the system in that Member State. 

The costs of review are also diverse in Member States. Member States recognise that costs 
are a factor to be taken into account by potential review-seekers but they also help to ensure 
that only well-founded cases are brought for review. In some Member States access to review 
is free (e.g. in Sweden, in Latvia there is no fee to submit a complaint in the first instance). In 
general, Member States do not consider that fees that they impose have a dissuasive effect on 
economic operators to file complaints. Some Member States are in the process of reforms to 
lower the amount of fees whereas others on the contrary, consider imposing higher fees in the 
future. 

As far as impact on time and/or standard for review depending on whether the case is dealt 
with  by  an  administrative  review  body  or  an  ordinary  court  is  concerned,  some  Member 
States  report  that  in  comparison  with  the  usual  length  of  procedures  of  ordinary  courts  the 
lengths of procedures of the administrative public procurement review bodies is substantially 
shorter.  Another  advantage  is  higher  degree  of  specialisation  of  such  bodies  in  the  field  of 
public procurement. 

Access  to  justice  is  considered  by  Member  States  as  one  of  the  corner  stones  of  the 
Constitutional State.  Member States are  of the opinion  that  in  the  absence  of  the  Remedies 
Directives it would be possible to protect bidders' individual rights due to the right to a fair 
trial and the right to a tribunal according to Article 6 of the European Convention on Human 
Rights  and  their  constitutional  laws.  The  Treaty  principles  also  require  Member  States  to 
guarantee a minimal level of protection of bidders' individual rights in the context of contract 
award procedures. In the absence of the Remedies Directives, Member States would still need 
to make their national legislation compatible with judgments of the Court of Justice on public 

67 

 
procurement  remedies.  Nonetheless,  in  the  absence  of  the  Remedies  Directives  the 
effectiveness of the protection of the bidders' individual rights would not be fully guaranteed. 
The added value of the Directives is that they allow bidders to submit the request for review 
before  the  conclusion  of  public  contracts,  when  infringements  can  still  be  corrected.  A 
minimum level of harmonisation at EU level, as guaranteed by the Remedies Directives, is 
recognised to be necessary. 

The  majority  of  Member  States  replying  to  the  questionnaire  perceive  interim  measures, 
standstill  period,  alternative  penalties,  ineffectiveness  and  damages  as  effective  to  palliate 
breaches  of  EU  public  procurement  rules.  All  above  mentioned  measures  together  or  the 
relevant  combination  of  them  provide  for  a  comprehensive  and  efficient  system  for 
sanctioning of irregularities in public procurement. 

In some Member States alternative penalties are either not implemented or are not awarded. 
Alternative  penalties  (fines)  are  also  not  perceived  as  relevant  by  some  Member  States 
because  they  constitute  a  simple  reallocation  of  public  funds  (the  punished  contracting 
authority  financed  from  the  State  budget  pays  a  fine  to  the  same  budget).  Some  Member 
States also underline that damages are important at a last resort, but less effective. 

In general, the majority of Member States consider that the Remedies Directives as modified 
by  Directive  2007/66/EC  balance  the  interest  of  economic  operators  in  protecting  their 
individual  rights  and  the  interest  of  contracting  authorities/entities  in  limiting  frivolous 
litigation. 

Some  Member  States  perceive  the  Remedies  Directives  as  quite  complex  whereas  others 
perceive  them,  or  at  least  most  of  their  provisions,  as  sufficiently/reasonably  clear  and 
precise.  One  Member  State  concludes  that  as  the  number  of  preliminary  rulings  before  the 
Court of Justice of the EU shows, there will always be room for interpretation. However, that 
Member State does not consider a "water-tight" legislation to be necessary and doable. 

At  the  same  time  no  major  or  urgent  need  for  amendments  to  the  Remedies  Directives  is 
signalled by Member States. Member States do not report on problems in addressing breaches 
in  EU  public  procurement  law  that  escape  the  scope  of  application  of  the  Remedies 
Directives. It is reported, however, that certain areas could be clarified by the Commission, 
for example, in the form of guidelines (e.g. fees, requirements for first instance administrative 
bodies and  their work organisation).  Following  the adoption of the new legislative package 
on public procurement, more clarity would be welcome with regard to the interplay between 
the Remedies Directives and the new substantive rules (e.g. references to "contract notice" in 
the  classic  Remedies  Directive  does  not  reflect  the  fact  that  the  new  classic  procurement 
Directive enables a prior information notice to be used, instead of a contract notice, to call for 
competition in certain circumstances; it could be clarified how the Remedies Directives apply 
to  modifications  of  public  contracts  and  concessions,  termination  of  such  contracts  and  the 
light regime for such contracts). 

3. Conclusions 

Overall,  the  replies  to  the  various  consultations  provided  a  positive  assesment  of  the 
functioning of the Remedies Directives. 

A  clear  majority  of  respondents  to  the  public  consultation  considered  that  the  Remedies 
Directives  have  had  a  positive  effect  on  the  public  procurement  process,  making  it  more 
transparent,  fairer,  more  open  and  accessible  and  more  compelling  to  comply  with  EU 
substantive public procurement rules. 

68 

 
 
The majority of respondents to the public consultation as well as Member States agreed that 
the  Remedies  Directives  balance  the  interest  of  economic  operators  in  protecting  their 
individual  rights  and  the  interest  of  contracting  authorities/entities  in  limiting  frivolous 
litigation. 

The  consultations  revealed that many  provisions of the Directives are perceived  as relevant 
across  suppliers,  contracting  authorities  and  legal  practitioners.  Based  on  the  replies  to  the 
public consultation, the most relevant provision appears to be the standstill period, followed 
by the suspension of the contract award procedure where review proceedings are initiated and 
the  automatic  debrief  to  tenderers.  Even  if  certain  provisions  were  perceived  as  being  less 
pertinent they still contribute to the Remedies Directives' deterrent effect. 

The  consultations,  however,  revealed  that  certain  aspects  of  the  Remedies  Directives  are 
unclear. This applies to, among others, matters such as the interplay between the Remedies 
Directives  and  the  new  legislative  package  on  public  procurement  and  the  development  of 
criteria  to  be  applied  to  lift  the  automatic  suspension  of  the  conclusion  of  the  contract 
following the lodging of a legal action. In this sense, it was in particular suggested that the 
Commission issues guidance to provide some clarifications. 

The  consultations  also  allowed  identifying  problems  that  persist  at  national  level  in  some 
Member States such as, for example, a high number of complaints lodged due to the lack of 
court  fees,  prohibitive  court  fees  and  cost  of  legal  representation,  too  lengthy  review 
procedures,  the  instances  of  non-enforceability  of  the  review  decisions,  difficulties  in 
ensuring consistency in the case-law of first instance review bodies, the absence of effective 
remedies  in  procedures  below  the  EU  thresholds  having  a  cross-border  interest  or  the 
application  of  restrictive  conditions  to  grant  interim  measures.  In  any  event,  various 
respondents to the public consultation indicated that the problems identified are rooted either 
in  national  legislation  beyond  the  Remedies  Directives  or  in  national  practices  rather  than 
stem from the Remedies Directives. 

To  conclude,  the  consultations  showed  that  the  Remedies  Directives,  and  in  particular  the 
amendments  introduced  by  Directive  2007/66/EC,  generally  have  met  their  objectives  of 
increasing  the  guarantees  of  transparency  and  non-discrimination,  allowing  effective  and 
rapid action to be taken when there is an alleged breach of the Procurement Directives and 
providing economic operators with the assurance that all tender applications will be treated 
equally. The Remedies Directives therefore present a clear EU added value. 

The  findings  of  the  consultations  carried  out  were  used  to  support  the  evaluation  of  the 
performance of the Remedies Directives. 

69 

 
ANNEX 3 — SUMMARY OF OPEN ONLINE PUBLIC CONSULTATION 

This Annex gives an overview of the answers to the different questions. 

The following questions were asked: 

1.  Have  the  Remedies  Directives  as  modified  by  Directive  2007/66/EC  helped  public 
procurement process to become more transparent, fairer, more open and accessible and 
more compelling for compliance? 

A  clear  majority  of  the  respondents  considered  that  the  Remedies  Directives  have  had  a 
positive effect on the public procurement process, making it: 

•  more transparent (80.59 %): 

•  fairer (79.42 %): 

70 

 
 
 
 
 
 
•  more open and accessible (77.65 %): 

•  and  more  compelling  to  comply  with  EU  substantive  public  procurement  rules 

(81.77 %). 

71 

 
 
 
 
 
All aspects included, the average percentage of respondents who gave a positive assessment 
was 79.86 %. 

However,  the  average  percentage  of  respondents  who  gave  a  critical  assessment,  at  least 
partially,  was  15.73 %.  The  percentages  for  the  four  abovementioned  sub-questions  were, 
(openness  and 
respectively,  15.29 % 
accessibility) and 11.76% (compliance with EU law). 

(transparency),  17.65 % 

(fairness),  18.24 % 

2.  In  your  view,  what  are  the  most  relevant  provisions  of  the  Remedies  Directives  as 
modified by Directive 2007/66/EC? 

Respondents were asked to grade the provisions from 1 to 5, 1 being the least relevant. The 
results were as follows: 

−  Automatic debrief to bidders at the time of the contract award decision notice: 

Answers Ratio 
11 
6.47 % 
15 
8.82 % 
37 
21.76 %
49 
28.82 %
49 
28.82 %
9 
5.29 % 

Answers Ratio
11 
13 
29 
38 
72 
7 

6.47 % 
7.65 % 
17.06 %
22.35 %
42.35 %
4.12 % 

1 
2 
3 
4 
5 
No Answer 

−  Standstill period to be at least 10 days:  

1 
2 
3 
4 
5 
No Answer   

72 

 
 
 
 
 
 
 
 
 
 
 
−  Minimum time limits for applying for a review:  

1 
2 
3 
4 
5 
No Answer 

Answers Ratio
11 
19 
50 
39 
41 
10 

6.47 % 
11.18 %
29.41 %
22.94 %
24.12 %
5.88 % 

−  Suspension  of  the  contract  award  procedure  where  review  proceedings  are 

initiated: 

1 
2 
3 
4 
5 
No Answer   

Answers Ratio
13 
12 
32 
33 
73 
7 

7.65 % 
7.06% 
18.82 %
19.41 %
42.94 %
4.12 % 

−  Ability of an independent review body to render a contract award ineffective: 

1 
2 
3 
4 
5 
No Answer 

Answers Ratio
12 
25 
27 
36 
61 
9 

7.06 % 
14.71 %
15.88 %
21.18 %
35.88 %
5.29 % 

−  Alternative penalties (fines and shortening of the contract’s duration): 

1 
2 
3 
4 
5 
No Answer 

−  Voluntary ex ante transparency notice: 

1 
2 
3 
4 
5 
No Answer 

73 

Answers Ratio
30 
40 
45 
33 
13 
9 

17.65 %
23.53 %
26.47 %
19.41 %
7.65 % 
5.29% 

Answers Ratio
27 
37 
42 
34 
20 
10 

15.88 %
21.76 %
24.71 %
20 % 
11.76 %
5.88 % 

 
 
 
 
 
 
 
 
 
 
 
 
−  Possibility to award damages to persons harmed by an infringement: 

1 
2 
3 
4 
5 
No Answer 

Answers Ratio
26 
37 
40 
35 
22 
10 

15.29 %
21.76 %
23.53 %
20.59 %
12.94 %
5.88 % 

By  combining  the  percentage  of  respondents  that  gave  grades  4  and  5  to  each  one  of  the 
provisions, the ranking of the relevant provisions of the Remedies Directives (from the most 
relevant to the least relevant) would be the following: 

Standstill period to be at least 10 days

Suspension of the contract award procedure where
review proceedings are initiated

Automatic debrief to bidders at the time of the contract
award decision notice

Ability of an independent review body to render a
contract award ineffective

Minimum time limits for applying for a review

Possibility to award damages to persons harmed by an
infringement

Voluntary ex ante transparency notice

64.70%

62.35%

57.64%

57.06%

47.06%

33.53%

31.76%

Alternative penalties

27.06%

3. How long does a review procedure usually last? 

On interim measures, the replies indicated the following timelines 

−  In first instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

Answers Ratio 
72 
50 
12 
6 
1 
29 

42.35 % 
29.41 % 
7.06 % 
3.53 % 
0.59 % 
17.06 % 

74 

 
 
 
 
 
 
 
 
 
 
 
 
 
−  In second instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

−  In third instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

Answers Ratio 
20 
37 
30 
16 
13 
54 

11.76 % 
21.76 % 
17.65 % 
9.41 % 
7.65 % 
31.76 % 

Answers Ratio 
4.71 % 
8 
7.06 % 
12 
6.47 % 
11 
10.59 % 
18 
12.35 % 
21 
58.82 % 
100 

On  the  setting  aside  of  decisions  taken  unlawfully,  the  replies  indicated  the  following 
timelines: 

−  In first instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

−  In second instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

−  In third instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

75 

Answers Ratio 
27 
55 
20 
26 
13 
29 

15.88 % 
32.35 % 
11.76 % 
15.29 % 
7.65 % 
17.06 % 

Answers Ratio 
1.18 % 
2 
15.29 % 
26 
20 % 
34 
11.76 % 
20 
22.94 % 
39 
28.82 % 
49 

Answers Ratio 
1.76 % 
3 
5.29 % 
9 
5.29 % 
9 
8.82 % 
15 
22.94 % 
39 
55.88 % 
95 

 
 
 
 
 
 
 
 
 
 
 
 
On the review procedure for damages, the replies indicated the following timelines: 

−  In first instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

−  In second instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

−  In third instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

Answers Ratio 
5.88 % 
10 
9.41 % 
16 
8.82 % 
15 
19.41 % 
33 
22.94 % 
39 
33.53 % 
57 

Answers Ratio 
1.76 % 
3 
5.29 % 
9 
9.41 % 
16 
12.94 % 
22 
34.71 % 
59 
35.88 % 
61 

Answers Ratio 
1.18 % 
2 
4.12 % 
7 
1.76 % 
3 
10.59 % 
18 
28.82 % 
49 
53.53 % 
91 

On the review procedure ineffectiveness, the replies indicated the following timelines: 

−  In first instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

−  In second instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

76 

Answers Ratio 
21 
36 
14 
26 
22 
51 

12.35 % 
21.18 % 
8.24 % 
15.29 % 
12.94 % 
30 % 

Answers Ratio 
1.18% 
2 
8.82 % 
15 
15.29 % 
26 
9.41 % 
16 
28.82 % 
49 
36.47 % 
62 

 
 
 
 
 
 
 
 
 
 
 
 
 
−  In third instance: 

Less than 1 month 
Between 1 and 3 months 
Between 3 and 6 months 
Between 6 and 12 months
More than 1 year 
No Answer 

Answers Ratio 
1 
7 
7 
15 
39 
101 

0.59 % 
4.12 % 
4.12 % 
8.82 % 
22.94 % 
59.41 % 

According to the abovementioned percentages, the general trend in Member States is that: 

(i) 

(ii) 

review  procedures  concerning  interim  measures  (which  in  most  cases  are  initiated 
before the award of the contract) most often take up to 1 month; 

review  procedures  for  the  setting  aside  of  decisions  (which  are  also  in  most  cases 
initiated  before  the  award  of  the  contract)  and  those  for  ineffectiveness  (which,  in 
turn,  are  initiated  after  the  award  of  the  contract)  most  often  take  between  1  and  3 
months; and 

(iii) 

review  procedures  for  damages  (which  are  also  initiated  after  the  award  of  the 
contract) most often take more than a year. 

4.  What  is/should  be  the  standard  for  review  in  public  procurement  cases  in  your 
jurisdiction?  

Exclusively legal matter 
Legal and technical matters
No Answer 

Answers Ratio 
53 
113 
4 

31.18 % 
66.47 % 
2.35 % 

5.  Is  there  any  impact  on  time  and/or  standard  for  review  depending  on  whether  the 
case is dealt by a specialised review body or an ordinary court?  

A large majority of stakeholders considered that there is an impact on time and/or standard 
for review depending on whether the case is dealt by a specialised review body or an ordinary 
court (74.7 % of participants). According to most of the replies, procedures before ordinary 
courts  take  longer.  Strict  time  limits  to  deal  with  a  case  can  be  imposed  on  specialised 

77 

 
 
 
 
 
 
 
 
 
 
administrative  review  bodies  whereas  they  cannot  be  imposed  on  courts.  Specialised 
administrative review bodies also focus on public procurement law and do not deal with other 
areas of the law. This specialisation may result in higher standards of adjudication. 

Yes 
Partly 
No 
No Answer 

Answers Ratio
100 
27 
24 
19 

58.82 %
15.88 %
14.12 %
11.18 %

The following examples were given by respondents:  

in  review  procedures.  Also, 

-  In  Austria:  a  recent  revision  of  respective  Viennese  Federal  State  Law  provides  for 
ordinary  courts 
the  prevailing  system  of  specialised 
administrative bodies (specialists covering various areas of expertise chaired by a judge) was 
dropped  in  2014.  Since  then,  decision  fall  to  regular  court  senates,  composed  of  judges 
exclusively.  As  a  consequence,  direct  clarification  of  preliminary  technical  questions  is  no 
longer feasible, but subject to comprehensive and time-consuming gathering of evidence. 

- In Belgium: two different courts are competent for interim  measures  and  setting  aside  of 
decisions. The tendering decisions of administrative authorities are reviewed by the Council 
of  State.  The  tendering  decisions  of  contracting  authorities  that  are  not  administrative 
authorities are reviewed by the ordinary courts. Interim measures before the Council of State 
take  one  month,  but  before  the  ordinary  courts,  it  can  take  between  two  and  four  months. 
After  the  decision  of  the  Council of  State  no  appeal  is  possible.  Before  the  ordinary  courts 
there  are  always  three  instances.  The  Council  of  State  has  judges  specialised  in  public 
procurement, but the ordinary courts rarely have judges specialised in this matter. 

-  In  Cyprus:  the  Tenders  Review  Authority  is  much  quicker  than  judicial  review  by  the 
Supreme  Court  (decisions  are  taken  within  three  to  six  months  whereas  courts  need  two  to 
three years). 

- In Ireland: given that procurement cases are heard in the High Court, the time for review 
can be lengthy, often in excess of one year. 

- In Germany: Vergabekammern decide much faster than German ordinary courts because of 
time limits imposed on them (five weeks from the submission of a complaint). 

- In Poland: disputes are solved by a specialised administrative review body within 15 days 
from  the  submission  of  a  complaint.  Less  formalised  forms  of  communication  and  less 
formalised and faster collection and evaluation of evidence by the review body compared to 
ordinary courts contribute however to a faster review by the review body. 

- According to Romania’s relevant national laws, the review body must deliver a reasoned 
decision  within  no  more  than  30  days  from  the  date  when  the  complaint  was  submitted. 
Whereas an ordinary court is only required to hand down its sentences within a ‘reasonable’ 
term (which, depending on the circumstances, may take several months). 

- In Spain: disputes are solved by specialised administrative review bodies within 15-20 days 
from the submission of a complaint whereas courts would need 1 year to solve such disputes.   

- In the UK: specialised construction adjudication bodies (the Technology and Construction 
Court  (TCC) — a specialist court of the Queen’s Bench Division of the High Court) provide 
for much speedier dispute resolution than ordinary courts. The TCC judges and officials have 

78 

 
 
 
 
developed  appreciable  expertise  in  managing  and  trying  public  procurement  cases.  The 
typical time from issue of proceedings to trial in the TCC is between 5-12 months. 

6.  To  what  extent  are  the  Remedies  Directives  as  modified  by  Directive  2007/66/EC 
sufficiently clear and precise? 

Significantly 
Moderately 
Not at all 
No Answer 

Answers Ratio
70 
81 
7 
12 

41.18 %
47.65 %
4.12 % 
7.06 % 

In  this  context,  the  Federation  of  German  Industries  (BDI)  stated  that  ‘the  rules  of  the 
Remedies Directives are clear and basically well shaped. Especially, the principle of effective 
review laid down in Article 1 of the Directives is of fundamental importance and absolutely 
indispensable for public procurement and the Internal Market as a whole. Certain problems 
reported (…) are very often subject to insufficiencies of the relevant national transposition’. 

The  Law  Society  of  England  and  Wales  reported  that  ‘the  provisions  are  generally 
sufficiently clear and precise. However, the framework of the Directives itself would benefit 
from  consolidation  and  tidying-up,  for  example  there  are  quite  a  few  cross-references 
between  articles.  More  certainty  on  how  ineffectiveness  might  operate  would  be  welcome, 
although this may be best addressed by Member States through the publication of guidance’. 

The  Procurement  Lawyers’  Association  of  the  opinion  that  ‘on  the  whole  the  current 
Directives  are  reasonably  clear.  There  are  a  small  number  of  areas  where  more  precise 
wording would assist in their interpretation". 

The Italian Council of Engineers claimed that ‘despite the significantly positive impact of 
the  remedies  provided  by  Directive  2007/66/EC,  in  some  of  its  parts  the  Directive  appears 
too generic an broad, leaving the State to choose whether to adapt at their discretion many 
aspects  of  the  remedies  concerned  to  their  internal  system  of  laws  or  to  execute  such 
remedies ‘as they are’’. 

Some respondents also submitted that the structure of the Remedies Directives is not clear as 
to which articles correspond to pre-contractual and which to post-contractual remedies. 

Some respondents also underlined that more clarity would be welcome in a number of areas 
related  to  institutional  aspects  (for  example,  professional  standards  for  members  of  a 
specialised review body), procedural aspects (criteria for lifting the automatic suspension, for 
granting  interim  measures  and  to  award  damages)  and  the  interplay  between  the  Remedies 
Directives and the new Public Procurement Directives (how the Remedies Directives apply to 
the modification and termination of public contracts and concessions and the so-called ‘light 
regime’). 

7.  To  what  extent  do  the  Remedies  Directives  as  modified  by  Directive  2007/66/EC 
balance  the  interest  of  economic  operators  in  ensuring  the  effectiveness  of  public 
procurement  law  and  the  interest  of  contracting  authorities  /  entities  in  limiting 
frivolous litigation? 

The balance is too much on the interest of economic 
operators 
The balance is on the middle 
The  balance 
is 
contracting authorities / entities 
No Answer 

too  much  on 

interest  of 

the 

79 

Answers  Ratio 
40 

23.53 % 

97 
27 

6 

57.06 % 
15.88 % 

3.53 % 

 
 
 
 
 
 
 
The following reasons were given by those who consider the balance to be equal: 

-  While  certain  provisions  are  in  the  interest  of  economic  operators  (e.g.  standstill 
period, automatic suspension, ineffectiveness) other provisions level the balance (e.g. 
review periods, VEAT notices and alternative penalties). 

-  Frivolous litigation might occur but it is not a substantial problem in markets where 
an  economic  operator  is  typically  interested  in  cooperation  with  the  contracting 
authority. 

-  The protection of public interest is taken into account in issuing interim measures. 
-  The consequence of issuing a claim (e. g. cost or cross undertaking in damages) tend 

to ensure that both parties act quickly and only in appropriate circumstances. 

On  the  other  hand,  the  following  reasons  were  given  by  those  who  consider  the  balance  to 
favour the interest of contracting authorities/entities: 

- 
- 
- 

In some cases it is too expensive to file a complaint. 
In practice, a lower standard of proof is required from contracting authorities/entities. 
In  disputes  related  to  a  description  of  the  subject-matter  of  a  contract  the  lack  of 
clarity is at the risk of an economic operator. 

Finally,  the  following  reasons  were  given  by  those  who  consider  the  balance  to  favour  the 
interest of economic operators: 

-  Because of the suspension of the contract award procedure where review proceedings 

are initiated, many public projects are postponed. 

-  The Remedies Directives does not contain any provision preventing and sanctioning 

- 

abuses of the remedy system by bidders. 
In  some  instances  contractors  challenge  decisions  to  award  a  contract  to  a  new 
contractor  on  insignificant  grounds  in  an  attempt  to  overturn  or  delay  the  contract 
award so that they remain under contract. 

8.  To  your  knowledge,  has  the  remedy  system  in  your  Member  State  caused  delays  in 
the  award  of  public  contracts?  What  was  in  your  view  the  main  reason  for  the  delay 
(other than the use of the remedy itself)? 

Concerning  the  existence  of  delays  in  the  award  of  public  contracts  due  to  remedies, 
respondents consider: 

80 

 
 
 
Yes, frequently 
Only occasionally
No 
No Answer 

Answers Ratio
40%  
68 
44.71 %
76 
11.18 %
19 
4.12 % 
7 

Concerning the reasons for those delays, the following reasons were put forward: 

National  procedural  rules  not  laid  down  in  the 
Remedies Directives 
Conduct of parties 
Ineffectiveness of the national judicial system 
Other (please specify) 
No Answer 

Answers  Ratio 
6.47 % 
11 

60 
29 
32 
38 

35.29 % 
17.06 % 
18.82 % 
22.35 % 

Among ‘other reasons’ the following were given: 

lack of sufficient staff in review bodies. 

- 
-  delays in contracting authorities submitting a file to a review body, 
- 
-  contracting  authorities  do  not  anticipate  review  procedures  when  they  set  deadlines 

the national procedural rules and/or the way that the courts list cases for trial, 

for their tender procedures. 

9. Should interim measures be considered an effective remedy? 

Yes 
Yes, but only exceptionally
No 
No Answer 

Answers Ratio 
90 
53 
20 
7 

52.94 % 
31.18 % 
11.76 % 
4.12 % 

81 

 
 
 
 
 
 
 
 
 
 
 
10. Should a standstill period be considered an effective remedy? 

Yes 
Yes, but only exceptionally
No 
No Answer 

Answers Ratio 
123 
23 
18 
6 

72.35 % 
13.53 % 
10.59 % 
3.53 % 

Overall,  the  standstill  period  was  the  remedy  that  most  respondents  unconditionally 
considered to be the most effective one. 

11.  Should  ineffectiveness  be  considered  an  effective  remedy,  in  particular  helping  to 
tackle direct awards? 

Yes 
Yes, but only exceptionally
No 
No Answer 

Answers Ratio 
87 
60 
11 
12 

51.18 % 
35.29 % 
6.47 % 
7.06 % 

82 

 
 
 
 
 
 
 
 
 
 
 
12. Should alternative penalties be considered an effective remedy? 

Yes 
Yes, but only exceptionally
No 
No Answer 

Answers Ratio 
56 
74 
33 
7 

32.94 % 
43.53 % 
19.41 % 
4.12 % 

Overall, alternative penalties were considered by respondents to be the least effective remedy. 

83 

 
 
  
 
 
 
 
 
13. Should damages be considered an effective remedy? 

Yes 
Yes, but only exceptionally
No 
No Answer 

Answers Ratio 
71 
66 
25 
8 

41.76 % 
38.82 % 
14.71 % 
4.71 % 

14. Do remedies exist for contracts below the EU thresholds in your jurisdiction? 

Yes, they are the same as for contracts above the 
EU thresholds 
Yes,  but  they  are  different  from  those  intended 
for  contracts  above  the  EU  thresholds  (please 
specify the differences) 
No 
No Answer 

Answers  Ratio 
61 

35.88 % 

79 

15 
15 

46.47 % 

8.82 % 
8.82 % 

In  most  Member  States  remedies  for  contracts  below  the  EU  thresholds  are  different  than 
those  above  the  thresholds.  The  lack  of  effective  remedies  in  procedures  below  the  EU 

84 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
thresholds  having  a  cross-border  interest  was  mentioned  as  one  of  persisting  problems  in 
addressing breaches of public procurement law. 

The  respondents  made  the  following  remarks  on  remedies  for  contracts  below  the  EU 
thresholds: 

Austria: for contracts below the thresholds, there are shorter periods and lower court fees. 

Belgium: there is no obligatory standstill period for contracts below the thresholds. 

Ireland: while there is no specific regime for below threshold procurement remedies, general 
administrative law on remedies are available (e. g. certiorari, mandamus, declarations, etc.). 

Finland: ineffectiveness, alternative penalties and standstill regulation (automatic suspension 
and standstill period) apply only above the EU thresholds. 

France: for contracts below the thresholds, irrespectively of the nature of the contract and the 
existence  of  cross-border  interest,  there  is  no  obligation  to  give  an  automatic  debrief  to 
bidders at the time of the contract award decision notice and there is no standstill period. 

Germany: for contracts below the thresholds, irrespectively of the nature of the contract and 
the existence of cross-border interest, there is no standstill period, no automatic suspension, 
no  mandatory  information  to  those  who  will  not  be  awarded  the  contract.  In  Germany  it  is 
significantly more difficult to be successful in a remedies procedure below the thresholds as 
compared to above the thresholds. 

Poland: there are limited numbers of actions against which economic operators can complain 
for  public  contracts  below  the  thresholds  (e.g.  choice  of  negotiated  procedure  without 
publication, exclusion of the appellant from the contract award procedures). 

Romania: there is a shorter standstill period and time limit for filling complaints related to 
public contracts below the thresholds. 

UK:  there  is  no  specific  regime  for  below  threshold  procurements  in  England  and  Wales; 
therefore there is a lack of standstill period and of automatic suspension. In those cases award 
decisions can be challenged by way of judicial review in the same way as any other decisions 
under  public  law.  Claims  for  below  thresholds  procurements  are  rare  (cost  of  litigation  is 
disproportionate  for  low  value  procurements  and  it  is  difficult  to  demonstrate  breaches  of 
law, because the claimant must first prove that there is a certain cross-border interest). 

15.  Would  alternative  dispute  resolution  (ADR)/mediation  prove  operational  in  the 
context of public procurement disputes? 

Yes 
No 
No Answer 

Answers Ratio
83 
72 
15 

48.82 %
42.35 %
8.82 % 

85 

 
 
 
 
 
The General Council of the Bar of England & Wales submits that ‘mediation works well 
where settlements are confined to awards of damages. The situation is more complex where 
other remedies are in play, not least because the remedies are likely to affect others such as 
the winning bidder and the users of any service and these parties are often not involved in the 
process. There may be legitimate public policy concerns as to whether mediation should ever 
be  deployed  in  such  cases  involving  public  policy  issues  that  ought  not  to  be  resolved  in 
confidential mediation’. 

The  Law  Society  of  England  and  Wales  adds  that  ‘arbitration  or  mediation  can  be  as 
expensive  as  courts  proceedings.  These  dispute  settlement  methods  are  also  private  and 
confidential which is inappropriate for procurement complaints’. 

The  Austrian  Economic  Chamber  considers  that  mandatory  ADR  would  be  useful  as  it 
‘allows  the  candidates  and  bidders  to  present  their  points  of  view  in  a  less  formalistic 
environment and to find out, if their request is substantiated or not without starting a formal 
procurement  review  procedure  in  court’.  According  to  CMS  Hungary  and  Foot  Anstey 
LLP,  considering  reputational  risks  for  bidders  related  with  complaints,  a  less  formal 
procedure  would  help  to  preserve  commercial  relationship  and  enable  the  parties  to  work 
together again in the future. 

16. Do court fees apply to public procurement cases in your jurisdiction? 

Yes 
No 
No Answer 

Answers Ratio
138 
23 
9 

81.18 %
13.53 %
5.29 % 

86 

 
 
 
 
 
 
According to the respondents, there are no court frees in Bulgaria, Croatia, Cyprus, Estonia, 
France, Germany, Lithuania, Spain and Sweden. 

17. Do administrative fees apply to public procurement cases in your jurisdiction? 

Yes 
No 
No Answer 

Answers Ratio
80 
78 
12 

47.06 %
45.88 %
7.06 % 

18. If the answer to question 16 or 17 is affirmative, would you define the level of fees as 
dissuasive for users of the review and justice system? 

Yes (if possible, please specify)
No 
No Answer 

Answers Ratio 
64 
86 
20 

37.65 % 
50.59 % 
11.76 % 

Respondents from the UK considered that the fee of up to £10 000 (roughly EUR 13 000 in 
2016) for commencement of proceedings is clearly dissuasive. 

19. Are there any other costs (such as the cost of legal advice and representation) that 
may have an impact on access to justice in your jurisdiction? 

Yes (if possible, please specify)
No 
No Answer 

Answers Ratio 
117 
42 
11 

68.82 % 
24.71 % 
6.47 % 

A large majority of participants consider costs of legal advice and representation as having an 
impact  on  access  to  justice.  According  to  some  respondents,  even  if  not  mandatory,  legal 
advice seems to be sought in most cases due to the complexity of public procurement law. 

According to some respondents, in some Member States legal representation is mandatory in 
second  instance.  According  to  some  respondents,  in  few  Member  States  (Cyprus,  Austria) 
economic operators are not reimbursed for costs when winning the case. 

87 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Some  respondents  stated  that  in  Poland,  the  cost  of  legal  advice  and  representation  is  high 
because there are only few lawyers who specialise in public procurement. On the other hand, 
it is claimed that in Latvia legal market is competitive and fees for advice are not exorbitant 
and are not an obstacle to accessing justice. 

According to Public Procurement Lawyers’ Association, legal costs and disbursement of a 
procurement  case  that  usually  goes  to  trial  are  usually  ‘over  six  figures’.  Furthermore,  it  is 
uncommon  for  lawyers  specialising  in  public  procurement  to  act  on  a  conditional  fee  basis 
(i.e. where the payment of the lawyer’s costs depends on achieving a settlement or success at 
trial)  where  it  is  likely  to  be  difficult  to  assess  the  merits  of  the  claim  at  the  outset  of  the 
matter. 

According to the Italian National Anticorruption Authority, for contracts below a certain 
value it is not worthwhile to file a complaint because for low value contracts lawyers’ fees 
are too expensive. Participants also underlined that for voluntary organisations and SMEs the 
costs  of  litigation  is  a  significant  factor  explaining  why  many  SMEs  decide  not  to  bring 
proceedings. 

20.  Do  you  think  that  there  are  still  problems  in  addressing  breaches  in  EU  public 
procurement law? 

Yes (please briefly describe such problems)
No 
No Answer 

Answers  Ratio 
107 
52 
11 

62.94 % 
30.59 % 
6.47 % 

The  respondents  perceived  the  Remedies  Directives  as  relevant  to  address  infringements  of 
EU  public  procurement  law  to  the  extent  that,  in  general,  those  who  still  see  problems  in 
addressing breaches in EU public procurement law, gave at the same time examples of how 
the situation could be improved. 

Some  respondents  highlighted  a  number  of  problems  related  to  institutional  and  procedural 
aspects:  

•  the absence of guarantees at EU level for independence of specialised administrative 

review bodies; 

•  the  absence  of  explicit  provisions  in  the  Remedies  Directives  on  how  to  protect 

business secrets in the review procedure; 

•  excessive court fees and costs of legal advice; 

•  non-enforceability of judgments in some Member States; and 

•  the  absence  of  effective  remedies  in  procedures  below  the  EU  thresholds  having  a 
cross-border  interest  and  the  shortness  of  the  time  limits  for  pre-contractual  and 
post-contractual remedies. 

Respondents also pointed out problems not related to the Remedies Directives as such: 

•  the fear of being blacklisted; 

•  the general lack of knowledge of public procurement rules on the part of contracting 

authorities; and 

88 

 
 
 
 
 
•  the general lack of awareness of the law by contractors who are often unaware of the 

tight timescales for challenges and fail to seek timely legal advice.   

Contributions received also allowed to identify problems that persist at national level. In fact, 
stakeholders often repeated that problems in addressing breaches in EU public procurement 
law  persist  at  national  level  rather  than  stem  from  EU  guarantees  from  the  Remedies 
Directives.  One  example  of  this  would  be  (i)  Member  States  where  time-limit  for  seeking 
review  is  significantly  longer  than  the  one  laid  down  in  the  Remedies  Directives  which  in 
some cases may create undue delays to the detriment of contracting authorities and successful 
tenderers. Other examples included in particular: (ii) a high number of complaints lodged due 
to the lack of court fees, (iii) prohibitive court fees and cost of legal representation, (iv) too 
lengthy review procedures that result from an insufficient allocation of human resources by 
Member States to allow the proper functioning of the review system, (v) the instances of non-
enforceability of the review decisions, (vi) difficulties in ensuring consistency in the case-law 
of  first  instance  review  bodies,  (vii)  the  absence  of  effective  remedies  in  procedures  below 
the  EU  thresholds  having  a  cross-border  interest  and  (viii)  the  application  of  restrictive 
conditions to grant interim measures. 

Respondents mentioned the following problems rooted in national law: 

Bulgaria: Damages are reviewed by courts in Bulgaria. It is reported that the shortcomings of 
the national judicial system limits the efficiency of this remedy. 

Denmark: Interim measures are hardly ever used. 

Ireland: The lack of clarity on the lifting of automatic suspension by courts is perceived as a 
problem. 

Italy: The 35-day standstill period stipulated in national legislation transposing the Remedies 
Directives sometimes causes significant delays in procurement procedures. 

Finland:  The  length  of  review  proceedings  is  perceived  as  disproportionate  (e.g.  a  year  in 
first instance before the Market Court and two years in second instance). A control of public 
procurement  by  a  competent  supervising  authority  would  be  useful  and  could  ease  the 
workload of the Market Court. 

Latvia:  The  lack  of  predictability  and  inconsistent  jurisprudence  from  the  first  instance 
review body is perceived as a problem. 

Netherlands:  It  is  reported  that  in  90 %  of  cases  courts  rule  in  favour  of  the  contracting 
authority. Decisions in favour of competitors are based on indisputable grounds. 

Poland: In Poland review by the National Chamber of Appeal is rapid. However, due to the 
fact that the National Chamber of Appeal should examine the appeal within 15 days from the 
date of its submission, it rarely calls experts. The  lack of consistent jurisprudence from  the 
National Chamber of Appeal is also perceived as a weakness in the system. Common courts, 
due  to  the  lack  of  specialised  chambers  and  time  constraints,  are  in  a  difficult  position  to 
thoroughly investigate public procurement matters in second instance. Consequently, a small 
number of complaints are lodged against judgments of the National Chamber of Appeal. 

Romania: A very high number of complaints are lodged. The main problem is to distinguish 
between justified and frivolous complaints. 

Sweden:  There  are  no  court  fees  in  Sweden.  This  results  in  frequent  litigation,  which  does 
not however cause any major blockage in the review system. 

89 

 
UK:  Repeated  case-law  in  the  UK  suggests  that  courts  are  reluctant  to  continue  automatic 
suspension  even  where  there  is  a  prima  facie  case  for  breach  of  EU  procurement  law. 
Moreover,  decisions  tend  to  favour  the  contracting  authorities.  In  general  terms,  there  is  a 
prevailing  view  that  damages  are  an  adequate  and  effective  remedy,  which  undermines  the 
effectiveness  of  the  review  procedures.  The  lack  of  a  administrative  review  body  is  also 
perceived  as  a  problem  in  the  UK.  The  costs  of  legal  representation  are  prohibitive,  in 
particular for smaller economic operators. The court fee typically payable on the issue of a 
procurement claim is £10 000 (roughly EUR 13 000 in 2016), which is the highest on the fee 
scale. Other court fees are payable as the claim progresses, including in most cases a hearing 
fee of £1 090 and £155 (roughly EUR 1400 and EUR 200 respectively in 2016) in respect of 
any  interim  applications  that  are  made  before  trial.  No  declaration  of  contract  being 
ineffective has been made in the UK so far.77 

77  According  to  the  most  recent  publicly  available  information,  after  the  end  of  a  public  consultation  one 
contract was declared ineffective in the UK. 

90 

 
 
 
                                                 
ANNEX  4  —  QUESTIONNAIRE  CIRCULATED  TO  MEMBER  STATES  ON  15/10/2015 
(DEADLINE TO REPLY: 23/11/2015) 

The length of review procedures: 

- What is the average length of review procedures in your Member States, including 
first and second instance review? 

-  Are  there  any  provisions  at  national  level  that  govern  the  length  of  review 
procedures? 

- Are there any examples of the remedy system causing delays in the award of public 
contracts? 

-  Have  you  identified  systematic  abuses  of  appeals  to  the  detriment  of  the  timely 
functioning of the system in your country? 

Costs and their impact on access to justice: 

- Do you consider costs of review (including lawyers’ fees) in your Member States 
as properly ensuring access to justice or rather dissuasive? 

Institutional aspect: 

- Is there any impact on time and/or standard for review depending on whether the 
case is dealt with by a specialised review body or an ordinary court? 

The standard of review:  

- What is the standard of review in your Member States, including first and second 
instance review? Are both legal and technical matters adjudicated? 

Factual information:  

- What is the number of cases dealt in first instance from 2012 to 2014? 

- What is the number of appeals to the decisions and their success rate? 

The Remedies Directives’ EU added value / Way forward: 

- In the absence of the Remedies Directives, would it be possible to protect bidders’ 
individual rights? 

- Are there still problems in addressing breaches in EU public procurement law that 
escape the scope of application of the Remedies Directives? Please give examples. 

-  What  could  be  done  to  improve  the  functioning  of  the  remedies  system  in  your 
country? Would it be necessary to amend the text of the Remedies Directives or to 
adopt non-legislative measures for a greater effectiveness in the system? 

91 

 
 
 
 
 
 
 
  
 
Overall effectiveness of the Remedies Directives:  

- To what extent do the Remedies Directives as modified by Directive 2007/66/EC 
balance  the  interest  of  economic  operators  in  protecting  their  individual  rights  and 
the interest of contracting authorities / entities in limiting frivolous litigation? 

- To what extent are the Remedies Directives as modified by Directive 2007/66/EC 
sufficiently clear and precise? 

-  Interim  measures,  standstill  period,  alternative  penalties,  ineffectiveness  and 
damages — are they effective to palliate breaches of EU public procurement rules? 

92 

 
ANNEX 5 — NATIONAL MEASURES TRANSPOSING DIRECTIVE 2007/66/EC 

National measures transposing Directive 2007/66/EC were notified by the Member States and 
since  then,  some  measures  have  been  amended  or  even  replaced.  Some  Member  States 
notified  the  national  transposition  measures  after  the  deadline,  which  expired  on  20 
December 2009. For details, see the table below.  

Member state 

Title communication 

Notification 

Belgium 

SERVICE  PUBLIC  FEDERAL  CHANCELLERIE  DU 
PREMIER  MINISTRE  —  10  FEVRIER  2010.  —  Arrêté 
royal modifiant certains arrêtés royaux exécutant la loi du 
24  décembre  1993  relative  aux  marchés  publics  et  à 
certains marchés de travaux, de fournitures et de services.  

16/02/2010   

Loi  du  23  décembre  2009  introduisant  un  nouveau  livre 
relatif  à  la  motivation,  à  l’information  et  aux  voies  de 
recours  dans  la  loi  du  24  décembre  1993  relative  aux 
marchés  publics  et  à  certains  marchés  de  travaux,  de 
fournitures et de services  

30/12/2009   

Закон  за  изменение  и  допълнение  на  Закона  за 
обществените  поръчки  (обн.,  ДВ,  бр.  28  от  2004  г.; 
изм., бр. 53 от 2004 г., бр. 31, 34 и 105 от 2005 г., бр. 
18, 33, 37 и 79 от 2006 г., бр. 59 от 2007 г., бр. 94, 98 и 
102 от 2008 г. и бр. 24 и 82 от 2009 г.)  

09/07/2010   

Zákonné opatření Senátu č. 341/2013 Sb., kterým se mění 
zákon  č.  137/2006  Sb.,  o  veřejných  zakázkách,  ve  znění 
pozdějších  předpisů,  a  zákon  č.  55/2012  Sb.,  kterým  se 
mění  zákon  č.  137/2006  Sb.,  o  veřejných  zakázkách,  ve 
znění pozdějších předpisů  

11/11/2014   

Bulgaria 

Czech 
Republic 

Zákon  č.  303/2013  Sb.,  kterým  se  mění  některé  zákony  v 
souvislosti s přijetím rekodifikace soukromého práva  

11/11/2014   

Zákon č. 167/2012 Sb., kterým se mění zákon č. 499/2004 
Sb.,  o  archivnictví  a  spisové  službě  a  o  změně  některých 

11/11/2014   

93 

 
 
 
 
 
 
zákonů,  ve  znění  pozdějších  předpisů,  zákon  č.  227/2000 
Sb., o elektronickém podpisu a o změně některých dalších 
zákonů  (zákon  o  elektronickém  podpisu),  ve  znění 
pozdějších předpisů, a další související zákony  

Zákon č. 89/2012 Sb., občanský zákoník  

11/11/2014   

Zákon  č.  55/2012  Sb.,  kterým  se  mění  zákon  č.  137/2006 
Sb., o veřejných zakázkách, ve znění pozdějších předpisů  

11/11/2014   

Zákon  č.  258/2011  Sb.,  kterým  se  mění  zákon  č.  137/2006 
Sb., o veřejných zakázkách, ve znění pozdějších předpisů  

11/11/2014   

Zákon č. 179/2010 Sb., kterým se mění zákon č. 137/2006 
Sb., o veřejných zakázkách, ve znění pozdějších předpisů, 
a některé další zákony  

11/11/2014   

Zákon  č.  281/2009  Sb.,  kterým  se  mění  některé  zákony  v 
souvislosti s přijetím daňového řádu  

11/11/2014   

Zákon č. 417/2009 Sb., kterým se mění zákon č. 137/2006 
Sb., o veřejných zakázkách, ve znění pozdějších předpisů, 
a některé další zákony  

08/02/2010   

Zákon č. 110/2009 Sb., kterým se mění zákon č. 130/2002 
Sb., o podpoře výzkumu a vývoje z veřejných prostředků a 
o změně některých souvisejících zákonů (zákon o podpoře 
výzkumu  a  vývoje),  ve  znění  pozdějších  předpisů,  a  další 
související zákony  

08/02/2010   

Zákon  č.  6/2002  Sb.,  o  soudech,  soudcích,  přísedících  a 
státní  správě  soudů  a  o  změně  některých  dalších  zákonů 
(zákon o soudech a soudcích)  

08/02/2010   

Zákon  č.  273/1996  Sb.,  o  působnosti  Úředu  pro  ochranu 
hospodářské soutěže  

08/02/2010   

Zákon  č.  509/1991  Sb.,  kterým  se  mění,  doplňuje  a  08/02/2010   

94 

 
 
 
 
 
 
upravuje občanský zákoník  

Zákon č. 40/1964 Sb., občanský zákoník  

08/02/2010   

Concordance table 32007L00 66_081014  

14/10/2008   

Zákon  č.  76/2008  Sb.,  kterým  se  mění  zákon  č.  137/2006 
Sb.,  o  veřejných  zakázkách,  ve  znění  zákona  č.  110/2007 
Sb.  

14/10/2008   

Zákon  č.  30/2008  Sb.,  kterým  se  mění  zákon  č.  139/2006 
Sb., o  koncesních  smlouvách a koncesním  řízení  (koncesní 
zákon)  

14/10/2008   

Zákon č. 344/2007 Sb., kterým se mění zákon č. 513/1991 
Sb.,  obchodní  zákoník,  ve  znění  pozdějších  předpisů,  a 
zákon č. 200/1990 Sb., o přestupcích, ve znění pozdějších 
předpisů  

14/10/2008   

Zákon  č.  139/2006  Sb.,  o  koncesních  smlouvách  a 
koncesním řízení (koncesní zákon)  

14/10/2008   

Zákon č. 137/2006 Sb., o veřejných zakázkách  

14/10/2008   

Zákon č. 500/2004 Sb., správní řád  

14/10/2008   

Zákon č. 150/2002 Sb., soudní řád správní  

14/10/2008   

Zákon  č.  30/2000  Sb.,  kterým  se  mění  zákon  č.  99/1963 
Sb., občanský soudní řád, ve znění pozdějších předpisů, a 
některé další zákony  

14/10/2008   

Zákon č. 519/1991 Sb., kterým se mění a doplňuje občanský 
soudní řád a notářský řád  

14/10/2008   

Zákon č. 513/1991 Sb., obchodní zákoník  

14/10/2008   

95 

 
 
 
Zákon č. 133/1982 Sb., kterým se mění a doplňuje občanský 
soudní řád  

14/10/2008   

Zákon č. 99/1963 Sb., občanský soudní řád  

14/10/2008   

Denmark 

Lov om håndhævelse af udbudsreglerne mv.  

18/05/2010   

Germany 

Gesetz zur Modernisierung des Vergaberechts  

13/01/2010   

Estonia 

RIIGIHANGETE SEADUS 1  

17/05/2010   

Ireland 

European  Communities  (Award  of  Contracts  by  Utility 
Undertakings) (Review Procedures) Regulations 2010  

06/04/2010   

European  Communities  (Public  Authorities  Contracts) 
(Review Procedures)Regulations 2010  

06/04/2010   

Greece 

Δικαστική  προστασία  κατά 
τη  σύναψη  δημόσιων 
συμβάσεων − Εναρμόνιση της ελληνικής νομοθεσίας με την 
Οδηγία  89/665/ΕΟΚ  του  Συμβουλίου  της  21ης  Ιουνίου 
1989  (L  395)  και  την  Οδηγία  92/13/ΕΟΚ  του  Συμβουλίου 
της 25ης Φεβρουαρίου 1992 (L 76), όπως τροποποιήθηκαν 
με την Οδηγία 2007/66/ΕΚ του Ευρωπαϊκού Κοινοβουλίου 
και του Συμβουλίου της 11ης Δεκεμβρίου 2007 (L 335).  

01/10/2010   

Spain 

Ley Foral 3/2013, de 25 de febrero, de modificación de la 
Ley Foral 6/2006, de 9 de junio, de Contratos Públicos  

04/03/2013   

Ley 34/2010, de 5 de agosto, de modificación de las Leyes 
30/2007,  de  30  de  octubre,  de  Contratos  del  Sector 
Público, 31/2007, de 30 de octubre, sobre procedimientos 
de  contratación  en  los  sectores  del  agua,  la  energía,  los 
transportes  y  los  servicios  postales,  y  29/1998,  de  13  de 
la  Jurisdicción  Contencioso-
julio,  reguladora  de 
la  normativa 
Administrativa  para  adaptación  a 
comunitaria de las dos primeras  

06/09/2010   

France 

Décret  No   2009-1456  du  27  novembre  2009  relatif  aux 
procédures  de  recours  applicables  aux  contrats  de  la 

04/12/2009   

96 

 
 
 
 
commande publique  

Ordonnance  No   2009-515  du  7  mai  2009  relative  aux 
procédures  de  recours  applicables  aux  contrats  de  la 
commande publique  

05/06/2009   

LOI No  2008-735 du 28 juillet 2008 relative aux contrats 
de partenariat (1)  

02/09/2008   

Croatia 

Zakon o izmjenama i dopunama Zakona o javnoj nabavi  

05/07/2013   

Italy 

Cyprus 

Latvia 

Zakon o koncesijama  

19/06/2013   

Zakon  o  Državnoj  komisiji  za  kontrolu  postupaka  javne 
nabave  

19/06/2013   

Zakon o javnoj nabavi  

19/06/2013   

Attuazione  della  direttiva  2007/66/CE  che  modifica  le 
direttive 89/665/CEE e 92/13/CEE per quanto riguarda il 
miglioramento dell’efficacia delle procedure di ricorso in 
materia d’aggiudicazione degli appalti pubblici.  

14/04/2010   

Ο  περί  των  Διαδικασιών  Προσφυγής  στον  Τομέα  της 
Σύναψης των Δημοσίων Συμβάσεων Νόμος του 2010.  

22/11/2010   

Ministru  kabineta  2010.gada  28.septembra  noteikumi 
Nr.904 ‘Noteikumi par koncesijas procedūras paziņojumu 
saturu,  to  iesniegšanas  kārtību  un  paziņojumu  veidlapu 
paraugiem’  

14/10/2010   

Ministru  kabineta  2010.gada  28.septembra  noteikumi  Nr. 
904  ‘Noteikumi  par  koncesijas  procedūras  paziņojumu 
saturu,  to  iesniegšanas  kārtību  un  paziņojumu  veidlapu 
paraugiem’  

04/10/2010   

Grozījumi Publiskās un privātās partnerības likumā  

03/09/2010   

97 

 
 
 
 
Sabiedrisko pakalpojumu sniedzēju iepirkumu likums  

03/09/2010   

Ministru  kabineta  2010.gada  27.jūlija  noteikumi  Nr.698 
‘Noteikumi  par  publisko  iepirkumu  paziņojumu  saturu  un 
sagatavošanas kārtību’  

10/08/2010   

Publisko iepirkumu likums  

18/06/2010   

Lithuania 

Lietuvos  Respublikos  viešųjų  pirkimų  įstatymo  2,  4,  7,  8, 
10, 11, 16, 18, 19, 22, 23, 24, 27, 28, 30, 31, 33, 38, 39, 
40,  43,  45,  49,  57,  62,  74,  85,  86,  89,  92  straipsnių 
pakeitimo 
įstatymo  papildymo  151 
straipsnių įstatymas Nr. XI-395  

ir  papildymo, 

31/08/2011   

Lietuvos Respublikos civilinio proceso kodekso pakeitimo ir 
papildymo įstatymas Nr. XI-1480  

31/08/2011   

Lietuvos  Respublikos  viešųjų  pirkimų  įstatymo  93,  94,  95, 
951 ir 952 straipsnių pakeitimo ir papildymo įstatymas Nr. 
XI-1487  

31/08/2011   

Lietuvos Respublikos viešųjų pirkimų įstatymo 2, 4, 6, 8, 9, 
10, 18, 19, 20, 21, 22, 23, 24, 25, 27, 33, 37, 38, 40, 41, 
56,  57,  71,  73,  81,  82,  83,  85,  86,  91,  92,  94,  95(1),  97 
straipsnių,  V  skyriaus  pavadinimo,  1,  2,  4  priedėlių  ir 
priedo pakeitimo ir papildymo įstatymas Nr. XI-1255  

28/02/2011   

Lietuvos Respublikos koncesijų įstatymo, Vietos savivaldos 
įstatymo pakeitimo ir papildymo įstatymas Nr. X-749  

10/03/2010   

Respublikos 

kodekso 
Lietuvos 
patvirtinimo, įsigaliojimo ir įgyvendinimo įstatymas Nr. IX-
743  

civilinio 

proceso 

10/03/2010   

Lietuvos  Respublikos  viešųjų  pirkimų  įstatymo  2,  6,  7,  8, 
10, 13, 15, 18, 22, 23, 24, 31, 32, 39, 41, 54, 58, 78, 85, 
89,  90,  91,  92,  93,  94,  95,  96,  97  straipsnių,  V  skyriaus 
pavadinimo  ir  priedo  pakeitimo  ir  papildymo,  Įstatymo 

10/03/2010   

98 

 
 
 
 
papildymo 21(1), 94(1), 95(1), 95(2) straipsniais ir 98, 99, 
100  straipsnių  pripažinimo  netekusiais  galios  įstatymas 
Nr. XI-678  

Lietuvos Respublikos viešųjų pirkimų įstatymo 2, 6, 7, 8, 9, 
10, 11, 12, 16, 17, 18, 19, 22, 23, 24, 27, 28, 30, 31, 33, 
38, 39, 41, 51, 57, 58, 70, 72, 75, 79, 81, 93, 95, 98, 100 
straipsnių, IV skyriaus, 1 ir 2 priedėlių ir priedo pakeitimo 
ir papildymo įstatymas Nr. X-1673  

10/03/2010   

Lietuvos  Respublikos  civilinio  kodekso  pavirtinimo, 
įsigaliojimo ir įgyvendinimo įstatymas Nr. VIII-1864  

10/03/2010   

Lietuvos  Respublikos  viešųjų  pirkimų  įstatymo  pakeitimo 
įstatymas Nr. X-471  

10/03/2010   

Luxemburg 

Règlement  grand-ducal  du  22  janvier  2011  portant 
exécution  de  l’Article  19  de  la  loi  du  10  novembre  2010 
instituant les recours en matière de marchés publics.  

02/02/2011   

Loi du 10 novembre 2010 instituant les recours en matière 
de marchés publics.  

12/11/2010   

Hungary 

és 

igazságügyi 

miniszter 
Az 
5/2009.  (III.  31.)  IRM  rendelete  a  közbeszerzési  és 
tervpályázati  hirdetmények,  a  bírálati  összegezések  és  az 
éves statisztikai összegezések mintáiról  

rendészeti 

21/01/2010   

2008.  évi  CVIII.  törvény  a  közbeszerzésekről  szóló  2003. 
évi CXXIX. tör vény módosításáról  

21/01/2010   

2003. évi CXXIX. törvény a közbeszerzésekről  

21/01/2010   

Malta 

Public Procurement (Amendment) Regulations, 2013  

20/02/2013   

Public  Procurement  of  Entities  operating  in  the  Water,  29/10/2012   

99 

 
 
 
 
 
 
Energy, Transport and Postal Services Sectors Regulations, 
2005  

LEGISLATION 

174.04 
SUBSIDIARY 
PUBLIC 
REGULATIONS 
LEGAL  NOTICE  296  of  2010,  as  amended  by  Legal 
Notices 47, 104, 255 and 312 of 2012.  

PROCUREMENT 

08/10/2012   

FINANCIAL  ADMINISTRATION  AND  AUDIT  ACT(CAP. 
174)Public  Procurement  (Amendment  No 4)  Regulations, 
2012  

02/10/2012   

L.N. 107 of 2011 
FINANCIAL  ADMINISTRATION  AND  AUDIT  ACT 
(CAP. 147) 
Public  Procurement  of  Entities  operating  in  the  Water, 
Energy,  Transport  and  Postal  Services  Sectors 
(Amendment)  
Regulations, 2011  

02/04/2011   

L.N.  296  of  2010  Public  Procurement  Regulations  2010 
ARRANGEMENT OF REGULATIONS  

24/05/2010   

L.N.  281  of  2010 FINANCIAL  ADMINISTRATION  AND 
AUDIT ACT (CAP. 174) Public Procurement Regulations, 
2010  

10/05/2010   

Netherlands    Wet  van  28  januari  2010  tot  implementatie  van  de 
(Wet 
rechtsbeschermingsrichtlijnen 
implementatie rechtsbeschermingsrichtlijnen aanbesteden) 

aanbesteden 

16/02/2010   

Austria 

Gesetz vom 13. Dezember 2013, mit dem ein Gesetz über 
den  Rechtsschutz  bei  der  Vergabe  von  Aufträgen 
(Kärntner  Vergaberechtsschutzgesetz  2014  —  K-VergRG 
2014) erlassen wird  

10/01/2014   

Wiener Vergaberchtsschutzgesetz 2014  

07/11/2013   

100 

 
 
 
  
 
 
 
Landesgesetz,  mit  dem  das  Oö.  Vergaberechtsschutzgesetz 
2006  geändert  wird 
(Oö.  Vergaberechtsschutzgesetz-
Novelle 2010)  

02/11/2010   

NÖ Vergabe-Nachprüfungsgesetz  

10/09/2010   

Änderung des Kärntner Vergaberechtsschutzgesetz  

20/08/2010   

Gesetz  vom  17.  März  2007,  mit  dem  das  Salzburger 
Vergabekontrollgesetz 2007 geändert wird  

05/07/2010   

eine 
Gesetz 
Vergabenachprüfungsgesetzes  

über 

Änderung 

des 

26/05/2010   

Gesetz vom 9. Februar 2010, mit dem das Steiermärkische 
Vergaberechtsschutzgesetz — StVergRG geändert wird — 
Vergaberechtsschutz-gesetznovelle 2010  

03/05/2010   

Gesetz  vom  17.  Dezember  2009,  mit  dem  das  Tiroler 
Vergabenachprüfungsgesetz 2006 geändert wird  

26/03/2010   

Gesetz,  mit  dem  das  Wiener  Vergaberechtsschutzgesetz 
2007 geändert wird  

16/03/2010   

Gesetz, 
Vergaberechtsschutzgesetz geändert wird  

dem 

das 

mit 

Burgenländisches 

16/03/2010   

Poland 

Portugal  

Bundesvergabegesetz-Novelle 2009  

16/03/2010   

Ustawa z dnia 2 grudnia 2009 r. o zmianie ustawy - Prawo 
zamówień publicznych oraz niektórych innych ustaw  

04/01/2010   

das  Obras  Públicas,  Transportes 

Ministério 
Comunicações  
Introduz  o  mecanismo  do  anúncio  voluntário  de 
transparência,  modifica  o  regime  da  invalidade  de  actos 
procedimentais de formação de contratos administrativos, 
clarifica  a  aplicação  de  regras  do  Código  dos  Contratos 

e 

14/12/2010   

101 

 
 
Públicos,  procede  à  quinta  alteração  ao  Código  dos 
Contratos  Públicos,  aprovado  pelo  Decreto-Lei  n.º 
18/2008,  de  29  de  Janeiro,  e  transpõe  a  Directiva  n.º 
2007/66/CE,  do  Parlamento  Europeu  e  do  Conselho,  de 
11  de  Dezembro,  que  altera  as  Directivas  n.os 
89/665/CEE,  do  Conselho,  de  21  de  Dezembro,  e 
92/13/CEE,  do  Conselho,  de  25  de  Fevereiro,  no  que  diz 
respeito à melhoria da eficácia do recurso em matéria de 
adjudicação de contratos públicos 

das  Obras  Públicas,  Transportes 

•Decreto-Lei n.º 18/2008. D.R. n.º 20, Série I de 2008-01-
29  
Ministério 
Comunicações  
Aprova  o  Código  dos  Contratos  Públicos,  que  estabelece 
a  disciplina  aplicável  à  contratação  pública  e  o  regime 
substantivo  dos  contratos  públicos  que  revistam  a 
natureza de contrato administrativo    

e 

08/09/2010   

•Lei  n.º  15/2002.  D.R.  n.º  45,  Série  I-A  de  2002-02-22 
Assembleia da República 
Aprova  o  Código  de  Processo  nos  Tribunais 
Administrativos (revoga o Decreto-Lei n.º 267/85 de 16 de 
Julho)  e  procede  à  quarta  alteração  do  Decreto-Lei  n.º 
555/99  de  16  de  Dezembro,  alterado  pelas  Leis  n.os 
13/2000, de 20 de Julho, e 30-A/2000, de 20 de Dezembro, 
e  pelo  Decreto-Lei  n.º  177/2001  de  4  de  Julho 

08/09/2010   

Romania 

Ordonanţă  de  urgenţă  privind  unele  măsuri  în  domeniul 
legislaţiei referitoare la achiziţiile publice 

14/01/2010  

Ordonanţa de urgenţă pentru modificarea şi completarea 
Ordonanţei  de  urgenţă  a  Guvernului  nr.  34/2006  privind 
atribuirea contractelor de achiziţie publică, a contractelor 
de  concesiune  de  lucrări  publice  şi  a  contractelor  de 
concesiune de servicii  

04/09/2009   

Slovenia 

Zakon  o  pravnem  varstvu  v  postopkih  javnega  naročanja 
(ZPVPJN)  

27/07/2011   

102 

 
 
 
 
  
 
 
 
Zakon  o  spremembah  in  dopolnitvah  Zakona  o  javnem 
naročanju  na  vodnem,  energetskem, 
transportnem 
področju  in  področju  poštnih  storitev  (ZJNVETPS-C) 

27/07/2011   

Zakon  o  spremembah  in  dopolnitvah  Zakona  o  javnem 
naročanju (ZJN-2B)  

27/07/2011   

Zakon  o  spremembah  in  dopolnitvah  Zakona  o  javnem 
naročanju  na  vodnem,  energetskem, 
transportnem 
področju  in  področju  poštnih  storitev  (ZJNVETPS-B) 

27/07/2011   

Zakon  o  spremembah  in  dopolnitvah  Zakona  o  javnem 
naročanju (ZJN-2C)  

27/07/2011   

Slovakia 

Zákon č. 95/2013 Z. z., ktorým sa mení a dopĺňa zákon č. 
25/2006  Z.  z.  o  verejnom  obstarávaní  a  o  zmene  a 
doplnení niektorých zákonov v znení neskorších predpisov 
a  o  zmene  zákona  č.  455/1991  Zb.  o  živnostenskom 
podnikaní 
(živnostenský  zákon)  v  znení  neskorších 
predpisov  

08/07/2013   

Zákon č. 28/2013 Z. z., ktorým sa mení a dopĺňa zákon č. 
25/2006  Z.  z.  o  verejnom  obstarávaní  a  o  zmene  a 
doplnení niektorých zákonov v znení neskorších predpisov  

08/07/2013   

Zákon č. 503/2009 Z. z., ktorým sa mení a dopĺňa zákon č. 
25/2006  Z.  z.  o  verejnom  obstarávaní  a  o  zmene  a 
doplnení niektorých zákonov v znení neskorších predpisov 
a o doplnení niektorých zákonov  

04/01/2010   

Finland 

Laki vesi- ja energiahuollon, liikenteen ja postipalvelujen 
alalla  toimivien  yksiköiden  hankinnoista  annetun  lain 
muuttamisesta / Lag om ändring av lagen om upphandling 
inom 
transporter  och 
posttjänster  

sektorerna 

energi, 

vatten, 

07/05/2010   

103 

 
 
 
 
 
 
 
 
 
 
Laki  julkisista  hankinnoista  annetun  lain  muuttamisesta  / 
Lag om ändring av lagen om offentlig upphandling  

07/05/2010   

LANDSKAPSLAG  om  ändring  av  4  §  landskapslagen  om 
allmänna handlingars offentlighet  

16/02/2010   

LANDSKAPSLAG 
landskapslagen 
angående  tillämpning  i  landskapet  Åland  av  lagen  om 
offentlig upphandling  

ändring 

om 

av 

16/02/2010   

Sweden 

Lag om ändring i lagen (2007:1092) om upphandling inom 
områdena vatten, energi, transporter och posttjänster  

15/06/2010   

Lag  om  ändring 
upphandling.  

i 

lagen  (2007:1091)  om  offentlig 

15/06/2010   

1.  lag  om  ändring  i  lagen  (2007:1091)  om  offentlig 
upphandling  
2.  lag  om  ändring  i  lagen  (2007:1092)  om  upphandling 
transporter  och 
inom  områdena 
posttjänster.  

energi, 

vatten, 

02/06/2010   

United 
Kingdom  

Public  Contracts  and  Utilities  Contracts 
Amendment Regulations 2009 SSI 2009 No 428  

(Scotland) 

17/12/2009   

Utilities Contracts (Amendment) Regulations 2009 SI 2009 
No 3100  

17/12/2009   

Public  Contracts  (Amendment)  Regulations  2009  SI  2009 
No 2992  

17/12/2009   

104 

 
 
 
ANNEX 6 — TYPES OF FIRST INSTANCE REVIEW BODIES IN MEMBER STATES AS OF 
MARCH 2016 

Review body 

Judicial body 

Judicial body 

Administrative  body:    Комисия  за  защита  на  конкуренцията  (Commission  for  Protection  of 
Competition) 

Administrative body: Αναθεωρητική Αρχή Προσφορών (Tenders Review Authority) 

Administrative  body:  Úřad  pro  ochranu  hospodářské  soutěže  (Office  for  the  Protection  of 
Competition)  

Administrative  body:  Kartellamt  (Competition  Protection  Body);  similar  bodies  exist  at  regional 
and local level 

Administrative body: Klagenævnet for Udbud (Review Body for Public Tenders) 

Administrative body: Riigihangete Vaidlustuskomisjon (Public Procurement Appeals Committee) 

Judicial body 

Administrative  body:  Tribunal  Administrativo  Central  de  Recursos  Contractuales  (Central 
Administrative Tribunal for Public Procurement); similar bodies exist in all regions and in some 
provinces and municipalities 

Judicial body 

Judicial body 

Administrative  body:  Državna  komisija  za  kontrolu  postupaka  javne  nabave  (State  Commission 
for Supervision of Public Procurement Procedures) 

Administrative body: Közbeszerzési Döntőbizottság (Public Procurement Arbitration Board)  

Judicial body 

Judicial body 

Judicial body 

Judicial body 

Judicial body 

Administrative  body:  Bord  ta’Reviżjoni  dwar  il-Kuntratti  Pubbliċi  /  Public  Contracts  Review 
Board 

Judicial body 

Administrative body: Krajowa Izba Odwoławcza (National Appeal Chamber) 

Judicial body 

Administrative  body:  Consiliului  Naţional  de  Soluţionare  a  Contestaţiilor  (National  Council  for 
Solving Complaints) 

Judicial body 

Administrative body: Državna revizijska komisija (National Review Commission) 

Administrative body: Úrad pre verejné obstarávanie (Office of Public Procurement)  

Judicial body 

MS 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

EL 

ES 

FI 

FR 

HR 

HU 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

105 

 
 
 
ANNEX 7 — THE USE OF VEAT NOTICES BY MEMBER STATE IN THE PERIOD 2009-
2012 

2009 

AT 
BE 
BG 
CY 
CZ 
DE 
DK 
EE 
ES 
FI 
FR 
GR 
HU 
HR 
IE 
IT 
LT 
LV 
NL 
PL 
PT 
RO 
SE 
SI 
SK 
UK 
IS 
LU 
NO 
 Total 
Source: OJEU/TED 

31 

2 

1 

34 

2010 
39 
3 
14 
1 
15 
18 
111 
8 
38 
107 
6 755 
1 
1 

5 
156 
18 
13 
21 
677 
3 

44 
112 
131 
222 

2011 
85 
3 
8 
8 
12 
19 
232 
6 
100 
222 
7 737 
7 

4 
261 
31 
32 
38 
1012 
8 
1 
99 
187 
143 
431 
1 
1 

8 513 

10 688 

2012 
75 
7 
21 
20 
23 
17 
552 
4 
85 
225 
6 603 
13 
1 

12 
247 
68 
31 
61 
919 
5 

73 
198 
150 
483 

2013 
129 
11 
53 
18 
45 
124 
534 

126 
289 
6 201 
6 
1 
57 
10 
265 
81 
26 
75 
923 
1 

75 
208 
135 
605 

1 
37 
9 931 

1 
144 
10 143 

2014 
124 
4 
57 
23 
24 
84 
550 
4 
89 
260 
5 118 
1 
1 
125 
4 
335 
83 
25 
68 
940 
3 

87 
240 
123 
667 
6 
1 
183 
9 229 

2015 
125 
3 
50 
29 
25 
67 
525 

140 
261 
4 781 
3 

118 
15 
455 
89 
19 
62 
982 
3 

78 
292 
86 
853 
4 

171 
9 236 

 Total 

577
31
203
99
144
329
2 504
22
578
1364
37 226
31
4
300
50
1 719
370
146
327
5 453
23
1
456
1 237
768
3 262
11
4
535
57 774

106 

 
 
 
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
MS 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

EL 

ES 

FI 

FR 

HR 

ANNEX 8 — IMPLEMENTATION OF ALTERNATIVE PENALTIES BY MEMBER STATE 

Alternative penalties applied  

Fines (up to 20 % of the contract value), to be used in a fund for the stimulation of scientific 
research or in other funds pursuing issues of general interest 

Fines (up to 15 % of the contract value) or shortening of the contract duration 

No provision for alternative penalties 

Fines and/or shortening of the contract duration 

Fines 

No provision for alternative penalties 

Fines (ranging between 3 % and 5 % of the contract value); criminal sanctions in the case of 
private undertakings operating in the utilities sector 

Shortening of the contract duration 

Fines and in some cases shortening of the contract duration 

Fines  (ranging  between  5 %  and  20 %  of  the  contract  value)  or  shortening  of  the  contract 
duration 

Fines (up to 10 % of the contract value) or shortening of the contract duration 

Fines (up to 20 % of the value of the contract) or shortening of the contract duration 

Fines (ranging between 10 % and 20 % of the contract value or, in case of partial annulment, 
of the performed part of the contract) or shortening of the contract duration.  

HU 

Fines. 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

Fines (up to 10 % of the contract value), shortening of the contract duration or termination 
of the contract 

Fines  (ranging  between  0.5 %  and  5 %  of  the  contract  value)  and/or  shortening  of  the 
contract  duration (ranging between  10 %  to  50 %  of  the remaining  duration  at  the  time  of 
publication of the review decision) 

Fines (up to 10 % of the contract value). 

Fines (up to 15 % of the contract value) or shortening of the contract duration 

The possibility of imposing alternative penalties is laid down in the legislation but they are 
not defined 

Fines (in the amount of 15 % of the contract value but not exceeding €  50 000) or shortening 
of the contract duration 

Fines (up to 15 % of the contract value) or shortening of the contract duration 

Fines (5 % or 10 % of the contract value) or shortening of the contract duration  

Fines (up to the total contract value) or shortening of the contract duration 

No provision for alternative penalties 

Fines (between Skr 10 000 and Skr 10 000 000 — i.e. between € 1 050 and € 1 050 000 — 
up to 10 % of the contract value) 

The possibility of not declaring a contract ineffective is laid down in the legislation but the 
alternative penalties are not defined 

Fines 

Fines and/or shortening of the contract duration 

Source:  Directorate  General  for  Internal  Market,  Industry,  Entrepreneurship  and  SMEs,  based  on  
publicly available information 

107 

 
 
ANNEX 9 — TIME LIMITS BY MEMBER STATE 

1. Time limits in pre-contractual remedies  

MS 

AT 

BE 

BG 

CY 

CZ 

DE 

Pre-contractual time limits  

At Federal and Länder levels, 15 days or 10 days with effect from the day following the date 
in which the decision is transmitted or published. 

15 days with effect from the day the decision is published or notified; electronic means or 
fax are always used. 

10 days with effect from the day the decision is notified. 

10 days if fax or electronic means are used or if there is publication; 15 of other means of 
communication  are  used,;  in  both  cases  the  time  starts  on  the  date  following  the  date  on 
which the decision is notified or published. 

15 days after the delivery of the decision (into the hands of the tenderer/candidate). 

Review must first be sought with the contracting authority immediately after being aware of 
the error (under new legislation, within 10 days of being aware of the error); if the claim is 
rejected, review with an administrative review body can be sought within 15 days. 

DK 

30 days from the moment of sending of the information on the award decision. 

EE 

EL 

ES 

FI 

FR 

HR 

HU 

IE 

IT 

LT 

LU 

LV 

10 days from the moment of receipt of the information on the award decision. 

Review  must  first  be  sought  with  the  contracting  authority  within  10  days  of  the 
transmission  of  the  award  decision;  the  contracting  authority  then  has  15  days  to  reach  a 
decision; if no decision concerning the review is reached within those 15 days, the claim is 
deemed to be rejected; as from the moment of the explicit or implicit rejection, the tenderer 
or candidate has 10 days to seek review with administrative courts.  

15  working  days  (including  Saturdays),  regardless  of  the  means  of  communication  used, 
with effect from the day following the date in which the decision is published or notified. 

14 days with effect from the date of receipt of the notification. 

The time limit is the conclusion of the contract, which is subject to a standstill period of 16 
days  as  from  the  day  the  information  on  the  award  decision  is  sent  out  (11  days  if  the 
information is sent out electronically); during that time and until there is a decision of the 
relevant review body, the conclusion of the contract is suspended 

10 days with effect from the day following the date in which the decision is received. 

15 days from the date when the applicant learned of the infringement. 

30 calendar days after the applicant was notified of the decision or knew or ought to have 
known of the infringement alleged in the application. 

30 days from the date of reception of the communication on the decision of the contracting 
authority. 

Review  must  first  be  sought  with  the  contracting  authority  within  15  days  of  the 
transmission of the award decision or within 10 days in cases where it is not required to send 
information;  the  tenderer  or  candidate  can  seek  review  with  a  court  within  15  days  of  the 
date  in  which  the  contracting  authority  should  provide  written  information  concerning  its 
decision. 

10 of 15 calendar days, depending on communication method used, with effect from the day 
following  the  date  on  which  the  contracting  authorities'  decision  is  sent  to  the  tenderer  or 
candidate. 

10 days if fax o electronic means are used or the notification is handed to the tenderer and 
15  days  if  postal  mail  is  used;  in  both  cases  the  time  limit  starts  on  the  date  of  the 
notification but 1 working day is added. 

108 

 
 
 
MT 

NL 

PL 

PT 

10  days  with  effect  from  the  day  following  the  date  of  notification  by  fax  or  electronic 
means. 

No time limit. 

10  and  15  days,  depending  on  communication  method,  with  effect  from  the  day  of 
notification. 

10  working  days  with  effect  from  the  day  following  the  date  in  which  the  decision  is 
notified; electronic means are always used. 

RO 

10 days with effect from the day following the date of notification or publication. 

SE 

SI 

SK 

UK 

10 and 15 days depending on the means of communication used. 

8  working  days  with  effect  from  the  date  of  publication  of  the  decision  or  receipt  of  the 
notification. 
The contract may be concluded at earliest on the 16th day after sending the contract award 
notice. 

30 days with effect from the date when the economic operator first knew or ought to have 
known that grounds for starting the proceedings had arisen; the court may extend this time 
limit by maximum 3 months. 

Source:  Directorate  General  for  Internal  Market,  Industry,  Entrepreneurship  and  SMEs,  based  on 
publicly available information 

2. Time limits for the ineffectiveness remedy 

MS 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EE 

EL 

ES 

FI 

FR 

HR 

 Ineffectiveness time limits 

30  days  with  effect  from  the  date  on  which  the  decision  is  published  or  notified  and  six 
months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

2  months  with  effect  on  the  date  the  decision  is  published  or  notified;  in  other  cases,  2 
months after finding out about the conclusion of the contract and in any event 1 year. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published and 
six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is notified and six 
months in other cases. 

30 days with effect from the day following the date on which the decision is published and 
six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 working days (including Saturdays) with effect from the day following the date on which 
the decision is published or notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is notified and six 
months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months for other cases, but only if the legal ground is the non-publication of 
a contract notice; for other legal grounds, 10 days. 

109 

 
 
HU 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

15 days from the date when the applicant learned of the infringement; 1 year from the date 
of conclusion of the contract if there was no award procedure. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published and 
six months in other cases. 

6 months in all cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

30 days with effect from the day following the date on which the decision is  notified and six 
months in other cases. 

8 working days with effect from the date of publication of the contract award notice in the 
Public  Procurement  Portal;  six  months  with  effect  with  effect  from  the  date  of  start  of 
performance of the contract if no contract award notice was published. 

30 days with effect from the day following the date on which the decision is published and 
six months in other cases. 

30 days with effect from the day following the date on which the decision is published or 
notified and six months in other cases. 

Source:  Directorate  General  for  Internal  Market,  Industry,  Entrepreneurship  and  SMEs,  based  on 
publicly available information  

110 

 
 ANNEX 10 — LENGTH OF REVIEW  

1. Estimated length of the review (interim measures 2009-2012) 

Interim

i

)
n
a
d
e
m

(

s
y
a
d
-
h
t
g
n
e
L

0
0
1

0
8

0
6

0
4

0
2

0

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

A
T
A
D
O
N

AT BE BG CY CZ DE DK EE EL ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK

Judicial

Non-judicial

Median

Note:  
Review of case-law 
Statistics based on the following number of observations: AT: 88; BG: 31; CY: 111; CZ: 42; DK: 90; 
EL: 104; HU: 39; IE: 1; LU: 24; LV: 3; SI: 4; UK: 11. 
Source: Study, Figure 6.6 (page 87)   

111 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
2. Estimated length of the review (second instance 2009-2012) 

Second pre-contractual

i

)
n
a
d
e
m

(

s
y
a
d
-

h
t
g
n
e
L

0
0
0
1

0
0
8

0
0
6

0
0
4

0
0
2

0

I

I

D
E
F
T
N
E
D

I

/

A
N

E
N
O
N

A
T
A
D
O
N

A
T
A
D
O
N

/

A
N

AT BE BG CY CZ DE DK EE EL ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK

Length

Median

Note:  
Review of case-law 
Statistics based on the following number of observations: AT: 44; BG: 124; CY: 5; CZ: 27; DE: 139; 
DK: 10; EE: 73; ES: 2; FI: 49; FR: 21; HU: 113; IT: 93; LT: 105; LU: 14; LV: 58; NL: 24; PL: 1; PT: 
14; RO: 34; SE: 32; SK: 17; UK: 4  
BE — N/A (no appeal from Council of State) 
EL — None identified from sample reviewed 
IE — No data (there is 1 case in 2011 and 1 in 2012 but dates of decision are missing) 
MT — No data 
SI — N/A (no appeal from National Review Commission). 

Source: Study, Figure 6.8 (page 89)   

112 

 
 
 
 
 
 
 
 
 
 
 
3. Estimated length of the review (third instance 2009-2012)  

Third pre-contractual

0
0
0
1

i

)
n
a
d
e
m

(

0
0
5

s
y
a
d
-

h
t
g
n
e
L

I

I

D
E
F
T
N
E
D

I

I

I

D
E
F
T
N
E
D

I

I

I

D
E
F
T
N
E
D

I

/

A
N

/

A
N

/

A
N

0

E
N
O
N

E
N
O
N

/

A
N

/

A
N

E
N
O
N

/

A
N

/

A
N

/

A
N

I

I

D
E
F
T
N
E
D

I

/

A
N

E
N
O
N

A
T
A
D
O
N

AT BE BG CY CZ DE DK EE EL ES FI FR HU IE IT LT LU LV MT NL PL PT RO SE SI SK UK

Length

Median

Review of case-law 
Note:  
statistics based on the following number of observations: CZ: 1; DE: 7; DK: 1; EE: 30; ES: 10; HU: 
69; LT: 47; LV: 17; NL: 3; PT: 14; RO: 1; SE: 2; SK: 14 
AT — N/A (second is final instance) 
BE — N/A 
BG — N/A 
CY — None identified from sample reviewed 
EL — None identified from sample reviewed 
FI — N/A 
FR — N/A 
IE — None identified from sample reviewed 
IT — N/A 
LU — N/A 
MT — N/A 
PL — No data 
SI — N/A 
UK — None identified from sample reviewed. 

Source: Study, Figure 6.9 (page 90)   

113 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX  11 —  PROVISIONS  FOR  THE  COSTS  OF  REVIEW  PROCEDURES  BY  MEMBER 
STATE

78 

MS 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

EL 

EE 

ES 

FI 

FR 

HR 

HU 

Litigation Costs 
Fee: Scaled based criteria (depending on object, nature 
of the procedure, procedure relates to above or below 
threshold contract). 
Procedural fees: €200 
Ordinary courts: €400 
Inscription on the roll: €100 
Summon [€140; €500] 
Below threshold: €435 (Stamp duty) 
Above threshold: €869 (Stamp duty) 
Fees [€4 000; €20  000] (depending on the value of the 
contract) 
Deposit 1 % of contract [CZK 50 000; 2 000  000]  
Unknown contract value: CZK 100,000 
Cancelled award: CZK 30  000 
Law suit against decision: CZK 3  000 
Appeal First instance: CZK 5 000 
Fee: [€2 500; €50  000] 
Fee in exceptional case: [€250;€100  000] 
Fee: 20  000 DKK (Public Sector) 
Fee:10 000 DKK (Other) 
Fee 1% of contract (max €50  000) 
Supreme Court: €2466 
Courts of Appeals: €1020 

Fee below threshold: €639.11  
Fee above threshold: €1278.23 
Fee: €0 

Fee general court: €244  

Administrative tribunal: €0 
High Courts: ~ €100 
- including summons ~[€40; €100] 

0-€197  202.69:  €1  314.89 
€197  202.69-€986 180.64: €3  287.27 
€986  180.64-€3  287 218.27: €5  917.08 
€3  287  218.27-€7  889  338.44:  €9  204.23 
above €7  889  338.44:  €13  148.90 

Fee: 1 % of contract value/lot  
Revision of decision: HUF 30  000  
Court proceedings: 6 % of contract value 
[HUF 15.000; HUF1.5 m] 
Above threshold: (max: HUF 25 000 000)   
Below threshold: [HUF 200  000;HUF 6  000  000] 
In cases pursuant to paragraph 1, fee:  
a) 1-3 elements fee is amount in paragraph 1 
b) 4-6 elements: fee is 125 % of (a) 
c) 7-10 elements: fee is 150 % of (a) 
d) 11-15 elements: fee is 175 % of (a) 
e) 16 or more elements: twice the of (a) 

Litigation Costs 

Fee €210  
Originating notice €190, affidavit €20 

Contract value < 200 000€: €2 000 
Contract value [€200 000; 1m]: €4 000 
Contract value>€1 000  000: €6 000 
For appeals, fees are increased by 50 % 
Stamp fee: €290   

Fee: €0  
Excluding lawyers and bailiffs fee 
Fee: €0  
Appeal to decision: €30 
Excluding lawyers and bailiffs fee 

Deposit 0.75 % of contract value [€1 200; €58  000] 

Fee: €3829 (legal persons)  
Contract value >€100  000: €1519 (natural persons) 
For  supplies and services: 
- Public authority below €134.000: €1.800; above €134.000: €3.600 
- Other authority below €207.000: €1.800; above €207.000: €3.600 
 For works: 
- Public authority below €5.186.000: €2.500; above €5.186.000: 
€5.000 
- Other authority below €5.186.000: €2.500;  above €5.186.000: 
€5.000  
The justice tax: €102 
Pre-contractual justice tax: €204 
€13 860-€92 400: 1 % of this value;  
€92 401-€924  000: €924+0.1 % excess of 92 401;  
€924  000-€9 240 000: €1756+0.01 % excess of 9  240  000 
€9 240,000-€92  400,000: €2587+0.001 % excess of 9  240  000 
€92  400,000-€924  000  000: €3418+0.0001 % excess of 92  400 
 000 
€924 000  000 or more: €4 250+0.00001 % excess of 924  000 000 
Note: these are not costs paid to the review body, but amount 
withheld from participation guarantee 
In addition a deposit is required of 1% of contract value (to a 
maximum of €100 000), retained if complainant’s case unsuccessful. 
Fee: €0 

2% of best bid price [€500; €25 000] 
Goods or services: Low value: €1 500; Open procedure: €3 500  
Works: Low value: €2 500; Open: €7  000  
Other €1  000 (defence and se curity B service; framework 
agreement; dynamic purchasing system or design contests). 
Before opening of tender: 
Goods and services:  
-Above:1 % max €4000,  
-Below:3 % max €2000 
Works:  
-Above: 0.1 % max €10  000,  
-Below:5 % max €5 000 
After opening of tender: 1% value (max €300  000) 
Unknown contract value: €3  000 
1% contract value [€600; €30  000] low price exclusion 
Fees: [€44; €2423] (based on contract value) 
Contract value £200  001- £250  000: €1912  
Contract value >£300 000: €2423 

MS 

IE 

IT 

LT 

LU 

LV 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

UK 

78 Study, Table 5.1 (p. 67)  

114 

 
 
 
                                                 
ANNEX 12 — THE NUMBER OF SECOND INSTANCE DECISIONS IN 2009-2012  

MS 

CZ 

CY 

DE 

DK 

EE 

HU 

IE 

LT 

LU 

RO 

SE 

SI 

2009 

2010 

2011 

2012 

Total 

100 

14 

199 

10 

48 

193 

111 

137 

4 

784 

409 

365 

167 

11 

226 

3 

37 

196 

17 

284 

4 

401 

544 

401 

155 

13 

241 

4 

57 

164 

79 

305 

4 

619 

717 

537 

229 

10 

184 

5 

55 

130 

0 

280 

2 

427 

716 

505 

651 

48 

850 

22 

197 

683 

207 

1 006 

14 

2 231 

2 386 

1 808 

Total 

2 374 

2 291 

2 895 

2 543 

10 103 

 Source: Study, Table 6.3 (page 84) 

115 

 
 
 
 
 
 
ANNEX 13 — THE NUMBER OF THIRD INSTANCE DECISIONS IN 2009-2012  

MS 

EE 

LT 

SE 

Total 

2009 

12 

8 

129 

149 

2010 

13 

10 

108 

131 

Review of case-law 
Source: Study, Table 6.4 (page 84) 

2011 

12 

23 

234 

269 

2012 

16 

20 

216 

252 

Total 

53 

61 

686 

800 

116 

 
 
 
 
 
ANNEX 14 — FREQUENCY OF REMEDIES SOUGHT IN 2009-2012 

Initial complain

Applicant

2,500
2,000
1,500
1,000
500

0

n

f
o

t
n
u
o
c

N/A

damages
set aside decision

specs.

damages
ineffectiveness

set aside contract

interim

 First (pre)

First (post)

Interim

Graphs by appellant

Second instance

Applicant

Contracting Authority

800

600

400

200

n

f

o

t

n
u
o
c

0

N/A

set aside contract
damages
ineffectiveness

set aside decision

specs.

N/A

set aside contract
damages
ineffectiveness

set aside decision

specs.

Graphs by appellant

Third instance

Applicant

Contracting Authority

150

100

50

n

f

o

t

n
u
o
c

0

N/A

set aside contract
damages
ineffectiveness

set aside decision

specs.

Graphs by appellant

Source: Study, Figure 6.10 (page 92) 

damages
ineffectiveness

set aside contract

set aside decision

specs.

117 

 
 
 
 
 
 
 
 
 
 
 
ANNEX 15 — GLOSSARY  

Contracting authorities:  

The Court: 

DPS: 

EC public consultation: 

EEA countries: 

Member States: 

OJEU/TED: 

Procurement Directives: 

Contracts:  

REFIT: 

Remedies Directives:  

Study:  

TFEU: 

Contracting authorities and entities as defined in Article 1, 
paragraph  9,  of  Directive  2004/18/EC  and  Article  2  of 
Directive 2004/17/EC; 

The Court of Justice of the European Union; 

Dynamic Purchasing System; 

Public  consultation  launched  by  the  services  of  the 
Commission, open from 24 April to 20 July 2014; 

EU  Member  States  and  Iceland  (IC),  Liechtenstein  (LI), 
and Norway (NO); 

Belgium  (BE),  Bulgaria  (BG),  the  Czech  Republic  (CZ), 
Denmark (DK), Germany (DE), Estonia (EE), Ireland (IE), 
Greece (EL), Spain (ES), France (FR), Croatia (HR), Italy 
(LT), 
(IT),  Cyprus 
Luxembourg 
(MT), 
Netherlands  (NL),  Austria  (AT),  Poland  (PL),  Portugal 
(PT), Romania (RO), Slovenia (SI), Slovakia (SK), Finland 
(FI), Sweden (SE), the United Kingdom (UK); 

(LV),  Lithuania 
(HU),  Malta 

(CY),  Latvia 
(LU),  Hungary 

TED  (Tenders  Electronic  Daily)  —  the  online  version  of 
the  ‘Supplement  to  the  Official  Journal’  of  the  EU, 
procurement 
dedicated 
(http://ted.europa.eu/); 

European 

public 

to 

Directives 
laying  down  substantive  rules  on  public 
procurement  i.e.  Directives  2004/17/EC  and  2004/18/EC 
(replaced  by  Directive  2014/23/EU,  Directive  2014/24/EU 
and Directive 2014/25/EU); 

Public contracts and concession contracts; 

Regulatory fitness and performance programme; 

Directives  89/665/EEC  and  92/13/EC,  as  amended  by 
Directive 2007/666/EC; 

‘Economic efficiency and legal effectiveness of review and 
remedies  procedures  for  public  contracts’  written  by 
Europe Economics and Milieu, April 2015; 

The Treaty on the Functioning of the European Union. 

118