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

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 24.1.2017  COM(2017) 28 final   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 {SWD(2017) 13 final}  
 
 
1. 

General context 

The  Procurement  Directives1  regulate  award  procedures  and  limited  aspects  of  the  execution  of 
public contracts and concession contracts above certain thresholds. The estimated value of tenders 
published  in  'Tenders  Electronic  Daily'  (TED)2  in  2014  amounted  to  421.31  billion  euros,  which  is 
3.32% of the EU GDP.3 Open and well regulated procurement markets 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 fully meet their objectives, 
economic operators had to be able to enforce the rights conferred by these Directives everywhere in 
the EU. Consequently, the Remedies Directives (Directives 89/665/EEC and 92/13/EEC, as amended 
through  Directive  2007/66/EC4)  were  adopted  as  flanking  measures5.  These  Directives  aimed  at 
ensuring that, based on minimum EU review standards, economic operators everywhere in 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 the Procurement Directives. 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  Directives  allow  actions  to  be  brought  both  before  the  contract  is  signed  (pre-
contractual  remedies)  and  after  (post-contractual  remedies).  Pre-contractual  remedies  include  the 
right  of  interim  measures,  a  compulsory  standstill  period  between  the  award  decision  and  the 
conclusion of the contract and the requirement to suspend the award procedure whilst the appeal is 
being investigated to prevent the award of the contract. Post-contractual remedies aim to declare 

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.  
Directive  2014/23/EU  introduced  further  amendments  to  Directive  89/665/EEC  and  Directive  92/13/EEC, 
mainly  to  extend  their  scope  of  application  with  regard  to  concessions.  Since  its  deadline  for  transposition 
elapsed on 18 April 2016, its impact is not addressed in this evaluation. 
2  TED  is  the  online  version  of  the  ‘Supplement  to  the  Official  Journal’  of  the  EU,  dedicated  to  public 
procurement (http://ted.europa.eu ). 
3  European  Commission,  2016.  "2014  Public  procurement  indicators",  http://ec.europa.eu/growth/single-
market/public-procurement/studies-networks/index_en.htm 
4  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. 
5  In  particular,  Directive  2007/66/EC  aimed  at  making  it  possible  for  cases  to  be  brought  where  corrective 
action is still possible and at providing an effective remedy for illegal direct awards. 

2 

 
 
 
                                                            
an  existing  contract  ineffective  and/or  to  provide  compensation  (in  particular  damages)  to  the 
affected parties after the contract in question has been signed. Additionally, other key elements of 
the Remedies Directives are the automatic debrief to tenderers as to why they were unsuccessful, 
the  regime  of  time  limits  for  bringing  proceedings  and  the  alternative  penalties  (namely  the 
shortening  of  the  duration  of  the  contract  or  the  imposition  of  fines)  when  ineffectiveness  is  not 
appropriate.  

The Remedies Directives provide that the Commission reviews their implementation and reports to 
the  European  Parliament  and  the  Council  on  their  effectiveness,  in  particular  as  regards  the 
alternative penalties and time limits introduced by Directive 2007/66/EC. In addition, in 2013 it was 
decided  to  carry  out  an  evaluation  under  the  Commission  Programme  on  Regulatory  Fitness  and 
Performance  (REFIT)  of  these  Directives.  The  present  report  is  submitted  to  Parliament  and  the 
Council  with  a  view  to  fulfil  the  legal  obligation  to  report  to  Parliament  and  Council  and  to 
communicate  the  results  of  the  REFIT  evaluation.  The  Staff  Working  Document  accompanying  this 
report provides additional detail on the evaluation carried out. 

In order to prepare the present report, the following sources of information were used: 

• 

• 

• 

• 

• 

the study ‘Economic efficiency and legal effectiveness of review and remedies procedures 
for public contracts’6; 

an open online public consultation that aimed to collect evidence on the functioning and 
added value of the Remedies Directives7; 

consultations with Member States; 

a number of targeted consultations with experts and practitioners in public procurement 
litigation; and 

a review of national legislation and case law. 

In addition to evaluating the policy performance of the Directives, the evaluation under REFIT has a 
specific focus on whether the Remedies Directives are fit for purpose, minimise associated costs and 
burdens and maximise the simplification potential. 

There  is  currently  no  EU-wide  monitoring  and  evaluation  system  of  remedies  in  Member  States. 
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 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).  

6 Study by Europe Economics and Milieu, April 2015: 
http://ec.europa.eu/growth/single-market/public-procurement/modernising-rules/evaluation/index_en.htm. 
7 This consultation was open from 24 April to 20 July 2015 and yielded 170 responses coming from all Member 
States.  The  consultation  involved  contracting  authorities  and  entities,  economic  operators,  academics, 
lawyers, review bodies and citizens.  

3 

 
 
                                                            
2. 

Implementation by Member States 

The Remedies Directives were fully transposed by all Member States. Nevertheless,  significant and 
wide-spread  delays  in  transposition  were  identified  for  the  amending  Directive  2007/66/EC  (for 
details,  see  Annex  5  to  the  Staff  Working  Document).  Given  the  minimum  harmonisation  brought 
about  by  the  Remedies  Directives,  Member  States  adopted  national  rules  of  varying  scope  and 
nature, having regard to their respective legal traditions. 

As  a  consequence,  a  variety  of  review  bodies  have  been  established  in  each  Member  State.  In 
14 Member States8 there is an administrative public procurement review body, whether specialised 
or not. In the remaining Member States, an existing judicial review body is responsible for the review 
of procurement procedures. 

All Member States require the review procedure to be available to anyone having or having had an 
interest  in  obtaining  a  particular  contract  and  who  has  been  or  risks  being  harmed  by  an  alleged 
infringement. In addition, some Member States also provide that associations or bodies that do not 
act  as  economic  operators  are  eligible  to  start  a  review  procedure.  This  may  include  professional 
associations or the competition authority. 

In  all  Member  States,  provisions  also  exist  for  the  three  compulsory  types  of  remedies  (interim 
measures,  set-aside  decisions  and  damages),  but  their  approach  varies  considerably  depending  on 
their legal traditions. 

For other key elements of the Remedies Directives, the situation is as follows: 

  All Member States provide for an automatic debrief to tenderers, at the time of the contract 

award decision, as to why they were unsuccessful. 

  All  Member  States  apply  the  minimum  standstill  period  as  required  by  the  Remedies 
Directives.  In  a  number  of  cases,  a  longer  standstill  period  has  been  specified  than  the 
minimum standstill period provided for under these Directives. 

  All Member States provide for ineffectiveness where a contracting authority/entity awards a 
contract  without  prior  publication  of  a  contract  notice  in  TED  when  this  is  not  permitted 
under  the  Procurement  Directives.  The  majority  of  Member  States  have  transposed 
provisions  on  voluntary  ex  ante  transparency  (VEAT)  notices,  which  allows  the  contracting 
authorities/entities  to  avoid  the  sanction  of  ineffectiveness.  Based  on  the  information 
available in TED, the use of this notice has remained relatively stable since 2010 with around 
10 000 notices published every year. 
In  most  Member  States,  the  time  limits  for  bringing  proceedings  for  pre-contractual 
remedies follow the structure of the Remedies Directives and thus lay down time limits that 
mirror the minimum standstill period. In some cases, a longer period is set. 

 

  Several Member States follow exactly the structure of the Remedies Directives in relation to 
time limits  for  ineffectiveness  claims.  Others  do  not  provide  that  both  the publication  and 
the notification of the award decision trigger the start of the 30-day time limit. In any event, 

8  Bulgaria,  Cyprus,  the  Czech  Republic,  Germany,  Denmark,  Estonia,  Spain,  Croatia,  Hungary,  Malta,  Poland, 
Romania, Slovenia, Slovakia. 

4 

 
 
 
 
 
 
                                                            
 

in  the  absence  of  any  publication  or  notification,  all  Member  States  lay  down  a  six-month 
time limit with effect from the day following the date of the conclusion of the contract. 
In some Member States, the period of suspension of the procurement procedure can apply 
until a decision on appeal against the first instance decision is taken, or even longer. In the 
vast  majority  of  Member  States,  the  court  or  the  review  body  can  bring  suspension  to  an 
end at an earlier stage. 

  For alternative penalties, the majority of Member States transposed both fines and/or the 
shortening  of  the  duration  of  the  contracts.  Nevertheless,  these  penalties  are  used  only 
sporadically  as  they  are  perceived  to  be  the  least  effective  remedy.  In  particular,  Member 
States consider that fines constitute a mere relocation of funds. 

3. 

The  Remedies  Directives’  effectiveness,  efficiency,  relevance,  coherence  with  other 
policies and EU added value 

The  Commission  carried  out  an  evaluation  of  the  performance  of  the  Remedies  Directives.  To  this 
end, it used specific evaluation criteria, including: (i) effectiveness; (ii) efficiency; (iii) relevance; (iv) 
coherence  with  other  policies  and  (v)  EU  added  value.  Detailed  evidence  for  the  relevant  findings 
can be found in the Staff Working Document accompanying this Report. 

On that basis, the following conclusions were reached. 

(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 Directives. In general, the remedies that they lay down 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  was  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 Commission 
departments’  public  consultation  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 %),  and  more  open  and  accessible  (77.65 %)  and  it  provides  greater  incentive  to 
comply  with  substantive  public  procurement  rules  (81.77 %).  As  confirmed  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. 

5 

 
 
 
In most cases, the costs of review procedures, albeit very divergent across Member States, do 
not  seem  to  have a  decisive  dissuasive  effect on  access  to  remedies.  Moreover,  the  Remedies 
Directives  are  also  well  balanced  in  addressing  the  interests  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 to pay particular attention to the effectiveness 
of  alternative  penalties  and  time  limits.  The  evaluation  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  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 themselves. 

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 policy-making 
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). 

(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.  However,  the  costs  would  not 
reduce  to  zero  if  the Remedies  Directives  were  repealed. On the contrary,  they could be  even 

6 

 
 
 
higher  because  of  national  differences  in  the  review  and  remedies  rules  and  a  lack  of 
harmonisation at EU 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 TED. 
The 2011 evaluation of EU public procurement legislation9 in general estimated that savings of 
5 %  realised  for  the  EUR 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 
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  2009-2012.10  The  most  frequent  type  of  remedy  sought  is  a  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  EU,  the  right  to  an  effective  remedy  is  a  general  principle  of  EU  law11.  The 
Remedies  Directives  are  in  line  with  the  rights  and  general  principles  laid  down  in  EU  primary 
law concerning fundamental rights. They 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 concessions 
subject  to  Directive  2014/23/EU.  Nonetheless,  as  already  mentioned,  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.  

9 The Evaluation Report on Impact and Effectiveness of EU Public Procurement Legislation, SEC(2011) 853 final. 
10  This  figure  came  from  the  Study  ‘Economic  efficiency  and  legal  effectiveness  of  review  and  remedies 
procedures for public contracts’. 
11  Order  of  23  April  2015  of  the  Vice-President  of  the  Court  of  Justice  in  case  C-35/15  P(R),  Vanbreda, 
paragraph 28. 

7 

 
 
 
 
                                                            
(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 the utmost importance to have EU law requirements for remedies in public procurement. 
Ordinary courts under ordinary procedural codes cannot guarantee a 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 
the 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  EU  thresholds,  the  substantive  public  procurement  rules  are 
applicable,  irrespective  of  their  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  interest,  etc.).  The  role  of  the  Commission,  when  dealing  with  individual 
complaints and potential infringements of EU law, is directed to ensuring future respect of 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 also 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  rule  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 the Remedies Directives is absolutely essential in this respect. 

4. 

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. 

First,  the  Commission  acknowledges  that  certain  provisions  of  the  Remedies  Directives  are  not 
entirely clear.12 In particular, despite the update introduced by the new legislative package on public 
procurement, some additional needs for clarification have been identified. For instance, references 
to ‘contract notice’ in the Remedies Directives do not reflect the fact that new Directive 2014/24/EU 
permits the use of a prior information notice, instead of a contract notice, to call for competition in 
certain circumstances. It could also be clarified how the Remedies Directives apply to modifications 

12 For details of the consultation launched by the Commission departments, see Annex 3 to the Staff Working 
Document (replies to questions 6 and 20). 

8 

 
 
 
                                                            
of  public  procurement  contracts  and  concessions,  to  the  termination  of  such  contracts  and  to  the 
light procurement regime. 

Furthermore,  the  Commission  concludes  that  in  most  Member  States,  information  on  national 
remedies systems has not been collected in a structured manner and has been rarely used for policy 
making purposes. This makes the assessment of the performance of the Directives more difficult. 

Finally,  the  Commission  has  concluded  that,  in  general  terms,  first  instance  administrative  review 
bodies are more effective than first instance judicial instances in terms of the duration of procedures 
and standards of review. 

5. 

Way forward 

(i)  General 

Given  that  the  evaluation  identified  neither  major  nor  urgent  needs  to  amend  the  Remedies 
Directives, it is decided to maintain them in their current form, without any further modification at 
this stage. 

Notwithstanding this, the Commission intends to tackle the weaknesses identified in the operation 
of the Remedies Directives and to seek greater convergence of remedies systems in Member States. 
While respecting  Member States’ procedural autonomy and their respective legal traditions at the 
same time, the Commission will use a consistent combination of the following additional actions. 

(ii)  Promotion of transparency 

The  evaluation  demonstrates  that  information  on  national  remedies  systems  have  not  been 
collected  in  a  structured  manner  and  have  rarely  been  used  for  policymaking  purposes.  To  tackle 
this,  the  Commission  intends  to  propose  increasing  transparency  regarding  the  performance  of 
national remedy systems. To begin with, data needs to be collected in an automated fashion without 
imposing  additional  administrative  burden.  In  that  context,  the  Commission,  as  announced  in  the 
Single  Market  Strategy13,  and  consistently  with  the  new  Interinstitutional  Agreement  on  Better 
Lawmaking14,  will  develop  —  together  with  Member  States  —  a  limited  number  of  objective 
indicators  (number  of  complaints,  number  of  successful  complaints,  costs,  length  of  procedures, 
etc.).  These  indicators  will  be  published  under  the  Single  Market  Scoreboard.  This  will  allow  the 
business community to compare the efficiency of remedies systems in different Member States and 
help Member States to identify opportunities for improvement of their national remedies systems. 

(iii) Promotion of cooperation between first instance review bodies 

The  evaluation  demonstrates  that  the  systems  by  which  legal  protection  in  public  procurement 
procedures  is  provided  in  the  first  instance  by  administrative  review  bodies  rather  than  ordinary 
courts  tend  to  be  more  effective  in  terms  of  both  the  duration  of  proceedings  and  adjudication 

13 Communication Upgrading the Single Market: more opportunities for people and business, COM(2015)550 
and Staff working document A Single Market Strategy for Europe — Analysis and Evidence, SWD(2015) 202 
14  European  Parliament  decision  of  9 March  2016  on  the  conclusion  of  an  Interinstitutional  Agreement  on 
Better  Lawmaking  between  the  European  Parliament,  the  Council  of  the  European  Union  and  the  European 
Commission (2016/2005(ACI)). 

9 

 
 
 
                                                            
standards.  For  this  reason,  as  announced  in  the  Single  Market  Strategy,  the  Commission  will 
encourage  first  instance  review  bodies  to  cooperate  and  network  to  improve  the  exchange  of 
information  and  best  practices  related  to  specific  aspects  of  the  operation  of  the  Remedies 
Directives  and,  more  generally,  to  ensure  the  efficient  functioning  of  national  review  procedures. 
The relevant good practices will be disseminated throughout the network. Good practices can be a 
source of inspiration and leverage for Member States to improve their national remedies systems. In 
that  context,  particular  attention  will  be  paid  to  strengthening  first  instance  administrative  review 
bodies. 

(iv) Guidance 

The Commission will disseminate guidance on some outstanding aspects of the Remedies Directives 
in  order  to  increase  the  understanding  of  some  provisions  and  to  guarantee  their  effectiveness. 
Aspects that could be covered include 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. Based 
on  evidence  gathered  so  far,  the  Commission  will  engage  in  a  dialogue  with  Member  States  and 
stakeholders to identify other specific areas that require clarification. 

(v)  Consistent enforcement activities and monitoring 

In  cases  where  breaches  of  the  Remedies  Directives  are  identified,  the  Commission  will  take 
appropriate measures to bring the relevant national practices into line with EU rules. In that context, 
the  Commission  will  focus  on  the  most  significant  and  systematic  breaches  that  undermine  the 
effective functioning of the remedies systems in Member States. 

10