CELEX: 51988PC0733
Language: en
Date: 1988-12-08
Title: Amended proposal for a COUNCIL DIRECTIVE on the coordination of the laws, regulations and administrative provisions relating to the application of Community rules on procedures for the award of public supply and public works contracts (presented by the Commission under Article 149(3) of the EEC Treaty)

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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                              COM ( 88 ) 733 final - SYN 89
                                              Brussels , 8 December 1988
                           Amended proposai for a
                              COUNCIL DIRECTIVE
on the coordination of the laws , regulations and administrative provisions
   relating to the application of Community rules on procedures for the
            award of public supply and public works contracts
             (presented by the Commission under Article 149(3 )
                             of the EEC Treaty )
 ---pagebreak---                                     - 2 -
                                                       C^wi
I. General
1 . If public contracts are to be opened up to Community competition by
    1992 , more appropriate and clearly visible action is needed to ensure
    monitoring of compliance with Community rules in this field . The
    Commission drew the European Council 's attention to this need in its
    White Paper on completing the internal market (CO4(85)310) . Further , as
    part of its public procurement action programme set out in its
    communication to the Council of 19 June 1986 , the Commission indicated
    its intention of intervening to prevent breaches of Community discipline
    and of establishing a system of rapid redress permitting intervention
    during award procedures . The Council took note of this intention on
    22 December 1986 .
2 . In July 1987 the Commission sent to the Council a proposal for a
    directive coordinating the laws , regulations and administrative
    provisions relating to the application of Community rules on procedures
    for the award of public supply and public works contracts . 1
1 024(87)134 final , 1 July 1987 .
 ---pagebreak---                                      - 3 -
3 . In May 1988 Parliament gave its opinion on this proposal , putting
    forward a number of amendments . The Commission has accepted several of
    these , which improve and clarify the original text to a significant
    degree . They interpret and supplement :
    (a) the provisions relating to the measures which the competent
         administrative or judicial authorities will be empowered to take
         when deciding claims , and the safeguards offered in this respect to
         the firms concerned , and
    (b) the provisions relating to the rules governing the Commission 's
         power of suspension and the way it will be exercised .
4 . The main amendments accepted concern :
    - the swiftness of the procedures whether administrative or before the
      courts : any interested party must be guaranteed a prompt hearing
      where a decision of the awarding authority breaches Community or
      national rules on public contracts ;
    - the provision that when an unlawful decision is set aside by the
      competent administrative or judicial body , the effects on the contract
      concerned shall be determined by applying the current law of each
      Member State ;
    - the guarantee that the competent administrative body when deciding a
      case has the power to see that its decision is executed effectively
      and to check that it has been carried out ;
 ---pagebreak---                                   - 4 -
- the obligation imposed on an administrative body , where it has the
  power to take , under an interlocutory procedure , provisional measures
  such as the suspension of an award procedure or the execution of the
  decision taken by the contracting authority , to give reasons for all
  its decisions . In addition , in this particular field , any unlawful
  measure taken by an administrative body or any defect in the exercise
  of the powers conferred on that body must be admissible grounds for
  judicial review by the courts ;
- the rule that the Commission cannot use its power of suspension where
  a contract has already been definitively concluded ;
- the inclusion in the proposal of an exhaustive list of the instances
  where the Commission can suspend an award procedure , and the right of
  the Member State to which the contracting authority is answerable to
  request that the Commission reconsider its suspensive decision ;
- the Commission 's invitation to the contracting authority , where the
  Commission has suspended the procedure for the award of a contract , to
  rectify the infringement as soon as possible and to notify the
  Commission thereof ;
- resumption of the award procedure once the infringement has been
  rectified ;
- the reference to Article 173 of the Treaty , which allows any person
  concerned to institute proceedings for misuse of powers before the
  Court of Justice against a suspensive decision by the Commission .
 ---pagebreak---                                      - 5 -
5 . The studies requested by the Commission on control in the Member States
    of compliance with the rules concerning public procurement were
    terminated in July 1968 . They confirm that the harmonization measures
    elaborated by the Commission in its original proposal were Justified .
    In the second half of 1987 and in 1988 the Commission also continued to
    sound out the interest groups concerned as to the amendments and
    improvements which, should be made to the original proposal . It also
    took note of the Economic and Social Committee 's opinion (22 October
    1987) on its original proposal .
6 . To a large extent , the suggestions and information received confirmed
    the merits of the amardments by Parliament which the Commission has
    accepted . The consultations and discussions mentioned above highlighted
    the need to explain in more detail to the political , administrative and
    trade interests concerned (a ) the reasons behind the Commission 's
    original proposal for a directive and (b) the reasons for the specific
    provisions designed to ensure more effective compliance with the
    Community rules as regards the procedures for awarding public supply and
    works contracts , aid. to do so independently of the improvements to the
    two specific directives .
7 . The reasons which have led the Commission to recommend Community
    harmonization as regards remedies and the introduction of a system of
    preventive intervention can be summarized as follows .
 ---pagebreak---                                         - 6 -
 8 . The Community rules on public procurement , and in particular Directives
      coordinating procedures for the award of public works contracts
      (71/305/EEC ; 78/669/EEC) and directives coordinating procedures for the
     award of public supply contracts (77/62/EEC , 80/769/EEC), do not
     specifically provide for effective monitoring of their application. 1
     It is clear to the Commission , after several years' experience , that
     both national and Community monitoring arrangements are unable to ensure
     strict compliance with the Community rules in this field , in particular
     before violation of those rules becomes irreparable .
9 . The Commission has noted -that contracting authorities may infringe
     applicable Community and national law at various stages of the contract
     award procedure . The most serious and frequent infringements include :
     - failure to publish the invitation to tender in the Official Journal of
        the European Communities ;
     - misuse of exceptional award procedures ;
     - invoking urgency unjustifiably in order to reduce the time limits in
        connection with publication of tender notices ;
1 However , the amended proposal concerning the award of public works
     contracts of 21 June 1988 (024(88)354 final ), that has not yet come into
     force , contains a provision requiring a contracting authority to inform
    any eliminated applicant or bidder who so requests of the reasons why
    his application or bid has been rejected . This provision will be
     effective , however , only if genuine means of redress are open to injured
     firms .
 ---pagebreak---                                       - 7 -
     - inclusion in the tender notice (local/national press and Official
       Journal of the European Communities) or in any other document laying
       down the contract award conditions , of administrative , financial ,
       economic or technical clauses (in particular , as respects the
       technical specifications , the obligation to apply national standards
       even where Community standards exist) which are incompatible with
       relevant provisions of Community law ;
     - the unlawful exclusion of tenderers or applicants from Member States
       other than that of the contracting authority ;
     - discrimination in the award contracts , e.g. by applying the rules on
       abnormally low prices in a discriminatory fashion .
10 .   It transpires from these examples that infringements of the Community
       rul.es on public procurement generally occur before the definitive
       award of the contract . Since contract award procedures are of short
       duration - a decision being taken within a few weeks - any failure to
       comply with the Community rules in question needs to be dealt with
       urgently and rapidly . Further , most such infringements differ from
       other types in that the irregularity committed is procedural . A
       procedural irregularity may be enough to exclude an enterprise from a
       given award procedure , and this encourages discriminatory practices .
 ---pagebreak---                                      - 8 -
11 . In addition , the number of public contracts awarded in   the Community
     is high . Even in the limited fields covered by            the present
     directives , nearly 9 500 notioes were published in       the Official
     Journal of the European Communities in 1986 and 11 617    in 1987 - an
     annual   rate   of Increase  of   22.2% . At national level ,  tens  of
     thousands of contracts to which the Treaty rules apply may be
     published in a single Member State , and hundreds of thousands , even ,
     in the largest Member States .
12 . Consequently , with a view to the optimal functioning of the internal
     market and in order for Community rules on the award of public
     contracts to have real impact and change mentalities , it is essential
     that firms should have easy access at national and local level to
     effective remedies .
13 . The Commission has found that remedies vary from one Member State to
     another , with regard to both administrative and judicial bodies . This
     creates differences of treatment between those who have had recourse
     to such remedies and differing situations between Member States as
     regards        the      infringement        of     Community       law .
 ---pagebreak---                                         - 9 -
 14 . A few examples can be given to illustrate current differences and. gaps
        in national systems :
(a) As regards administrative remédias :
     - these are usually based on administrative practices , which do not
        provide the complainant with any real safeguards ; some Member States
        (for example , France , Greece , Italy , Portugal and Spain) do have a
        relatively structured system of administrative appeal , however ;
     - suspension of an award decision is recognized in only a few Member
        States ;
     - it is not possible in all Member States to annul or withdraw an award
       decision ;
     - it is virtually impossible anywhere in the Community for injured firms
       to obtain direct damages from the administrative authorities .
(b) As regards remedies granted by the courts :
     - in sose Member States suspension of an award decision is recognized
       only exceptionally and. is virtually never granted in practice ;
    - in certain Member States , it is not possible for an award decision to
       be set aside ;
    - the possibility of obtaining damages is subject in certain Member
       States    to  limits   and  uncertainties   such  that  it  is     largely
       theoretical ;
    - the possibility of intervention by third parties in an appeal to the
       courts also varies considerably ;    in some Member States it does not
       exist .
 ---pagebreak---                                      - 10 -
 15 . One of the major objectives of the Commission 's proposal Is to ensure
      minimum coordination and strengthen national procedures for protection
      by the courts , thus enabling injured entrepreneurs and suppliers to
      bring proceedings quickly , before either an administrative or a
       judicial body , so as to ensure that the rules of public contracts are
      correctly applied .
16 . However , the desired improvement in national appeal systems is not in
      itself sufficient to guarantee compliance with the rules on the award
      of public contracts . Another major feature identified by the
      Commission is the reluctance of certain firms to complain about a
      contracting authority for fear of damaging consequences in their
      relations with public purchasers , even where they are victims of
      obvious discrimination .
17 .  It is therefore essential that the Commission , in its role as the
      guardian of the Community rules , should be able to intervene to ensure
      compliance with those rules . The current means at its disposal are
      unsuited to the specific nature of the infringements in the public
      contracts field . The procedure relating to the failure by a Member
      State to fulfil an obligation (Article 169 EEC) is cumbersome and slow
      (on average , judgment is given two years after the Commission starts
      proceedings ), nor does it lend itself easily to the correction of
      procedural irregularities as encountered in the public contracts
      sphere . Proceedings usually reach their conclusion when it is no
      longer possible to remedy the consequences of the infringement .
      Further , Article 169 proceedings are addressed to Member States only
      and generally do not provide a basis for the Commission to intervene
      directly with regard to an individual decision by an awarding body .
 ---pagebreak---                                      - 11 -
18 . The Commission can of course apply for interim measures suspending the
      award procedure where an action is oamroenoed on the ground that a
      Member State has failed to fulfil an obligation . Where such an
      application is admissible , as in TA       (Case 194/88R , Order of the
      President of the Court , 27 September 1988), the procedure remains
      cumbersome and unsuited to the rapid correction of failures by
     awarding authorities to fulfil obligations specifically imposed on
      them .
19 . Lastly , the ineffectiveness of proceedings for a declaration of
     failure to fulfil an obligation tends to encourage potential breaches
     of the Community rules and discourages contractors and suppliers from
     appealing against such breaches .
20 . This is why the Commission believes that it should have at its
     disposal a new administrative means , which is more adapted to reality
     than the Article 169 procedure . The Commission has therefore proposed
     a special procedure , separate from the Article 169 procedure , which
     will enable it to act rapidly and in a preventive capacity before the
     having to begin court proceedings . The Commission intends to use this
     new procedure only in matters of urgency where an obvious irregularity
     has been established .
 ---pagebreak---                                     - 12 -
21 . As regards the exercise of its supervisory function and the action to
     he taken , the Commission , before it suspends an award , should
     obviously contact the authority responsible for the contract with a
     view to reaching an amicable solution . Only in cases where the
     authority refuses to cooperate could the Commission temporarily
     suspend an award procedure that has already begun .
22 . Where an authority complies with the Commission 's observations , the
     award procedure can be resumed . 'Where this does not occur , the
     authority would be able to attack the suspensive decision . At all
     events , the suspension can only be for a maximum of three months .
     Further , the amended proposal now clearly limits the Commission 's
     power of suspension , since such, power cannot he exercised once a
     contract has been finally concluded . The Commission will also have to
     undertake to reconsider its suspensive decision when invited to do so
     by the Member State to which, the contracting authority is responsible .
     The significance of such a request must be stressed for it will enable
     the Member State concerned to ensure that all factors that appear
     relevant have been properly taken into consideration . Lastly , as well
     as expressly mentioning the cases of suspension , the proposal refers
     to the guarantees provided by the Treaty in regard to appeals against
     possible misuse of powers by the Commission . The three-month
     standstill which the Commission may initiate has a precedent in the
     Directive of 28 March 1988 (83/ 189/EBC) , which provides for an
     information     procedure with  regard   to  technical  standards   and
     regulations . 1
1 OJL 109 , 28 April 1983 .
 ---pagebreak---                                     - 13 -
23 . The amendments proposed by Parliament which the Commission has
     accepted , and the arguments put forward above , mean that the
     Commission 's original proposal must be amended as set out below . This
     version contains the proposal put forward by the Commission in July
     1987 plus the new elements referred to at the start of the general
     section (see above).
     The new elements have been •underlined .
 ---pagebreak---                                         - 14 -
     II .  ANALYSIS OF ARTICLES
    ARTICLE 1
     1 . It is essential to ensure that the guarantees of transparency and non¬
    discrimination introduced by the Council Directives 77/62/EEC and
     60/767/EEc(1 )on public supply contracts and by the Council Directives
    71 /305/EEC and 78/660/EEC        on public works contracts have tangible
    effects . For this purpose contractors and suppliers must have access to
    effective and rapid administrative and Judicial remedies that make it
    possible at any stage of the contract award procedure to take action
    against infringements of Community or national rules on public procurement
    committed by a contracting authority as defined by the Community rules , not
    only in a few countries as at present but in all Member States .
    2 . Article 1 accordingly provides for the introduction of such remedies
    in those Member States in which they are lacking and for the improvement in
    other Member States of existing procedures which do not ensure effective
    and speedy redress . Article 1 also specifies who is to be able to seek
    such redress .
  X (1)   – Council Directive 77/62/EEC of 21 December 1976 coordinating
            procedures for the award of public supply contracts (0SFS- 15.1.77 L
             13 )                               iOJtc            5 Jet
 K        – Council Directive 80/767/EBd of 22 July 1980 adapting rad
            supplementing in respect/ of certain contracting authorities
            Directive 77/62/EEC (OEBC /L8 . 8 . 80 L 215 )
<   ( 2)  – Council Directive 71 /305/EEC of 28 July 1971 concerning the co­
             ordination of procedures for the award of public works contracts
             (OJEC 25.8.71 L 185)
  Λ       – Council Directive 73/66S/ESC of 2 August 1978 amending Directive
             71/305/EEC (OJEC 16.8.1978 L 225 ).              t
 ---pagebreak---                                         15 -
 3 . Following the adoption by Parliament of its opinion and discussions
with various sectors of industry , it has been considered preferable to
propose a fresh draft of Article 1 , which now merely lays down the general
objectives of the Directive in terms of the redress that must be available
to enterprises .
4 . The contents of the two indents of paragraph 1 of the old Article 1
and of paragraphs 2 and 3 of that article have been incorporated in a new
Article 2 .
ARTICLE 2
5.   The new Article 2 specifies which measures , within the meaning of
Article 1 . the competent administrative or judicial body must be empowered
to take .   Tiie replacement of "court " by " judicial body " is due to the need
to take account of the existing law of one Member State which provides for
recourse to the courts and to an arbitration board .
6.   It must be stressed that the Directive leaves Member States freedom of
choice aid. flexibility in introducing and improving systems of recourse ,
whether to administrative bodies having the necessary powers or to judicial
bodies similarly endowed .
 ---pagebreak---                                     - 16 -
7 . Because same Member States require that those with a grievance first
of all seek an administrative remedy before applying to the courts , the
wording of Article 2 , and in particular the phrase "confer the power
enabling the competent administrative or judicial body" , must be understood
as not preventing the maintenance of prior recourse to an administrative
body provided speedy redress can be obtained that way .
8.   The measures referral to in the new Article 2(1 ) have been arranged in
such a way as to distinguish between :
(a) interim measures taken by way of an interlocutory procedure , such as
measures to suspend the award procedure or execution of the decision taken
by the contracting authority ;
(b) measures , backed up by penalty payments , ordering the removal of
discriminatory technical , economic or financial clauses ; and
(c) measures setting aside decisions taken unlawfully and awarding damages
to injured undertakings . The new wording makes it clear that the setting
aside of a decision does not prejudice the effects on the contract
concerned . In some Member States such a decision automatically affects the
validity of the contract . In others to have the award decision set aside
by an administrative tribunal is an essential first step towards recovering
damages , as a rule in the civil courts . In other words , the Commission 's
proposal does not aim at Community-wide harmonization of the effects on the
contract where an award decision is set aside .
 ---pagebreak---                                     - 17 -
9 . The provisions of paragraph 2 of the new Article 2 are designed to
ensure that the administrative body empowered to deal with a complaint has
the powers necessary to monitor and enforoe observance of its decisions
effectively . Paragraph 3 provides additional guarantees of transparency
and access to a review body where the competent administrative body takes
interim measures by way of summary procedure (cf . Article 2(l)(a)) in as
much as its decisions will have to state the reasons on which they are
based , and any unlawful measure or any failure by the administrative body
to exercise its powers can be subject to judicial review .
ARTICLE 3
10 . It must be possible , in the course of an administrative or judicial
procedure instituted by a contractor or supplier before a competent body ,
for the Commission to act to ensure respect for the precedence of the
Community legal interest as defined by the Court of Justice in its rulings
in the field of public procurement . Such a power vested in the Commission
would ensure that the Community rules on public procurement are interpreted
and applied uniformly and that the contracting authorities are better
informed of their obligations tinder those rules .
11 . The new wording is intended to cover cases where the Commission is
represented by a legal practitioner or submits its arguments in writing .
 ---pagebreak---                                      - 18 -
АТ7ТТГТГЛЯ 4 АШ 5
 12 . Given the specific nature of infringements of the Cominunity rules on
public procurement , the short duration of contract award procedures
 (necessitating urgent action against such infringements) and the legal
limits to and current slowness of any action taken by the Commission or the
Court of Justice in the event of an infringement , the Commission should , in
the case of urgency , be empowered , in response to a complaint or on its own
initiative , to require the contracting authority to suspend a contract
award procedure for a limited period with a view to preventing any
irreparable harm that might result if the contract were awarded unlawfully .
13 . A standstill would thus be  imposed on the contracting authority . The
Commission and the contracting   authority will be able to avail themselves
of this opportunity to examine   together ways of reconciling the different
viewpoints so as to arrive at a  satisfactory outcome from the point of view
of Community law .
14 . This administrative suspension arrangement affords both parties much
more flexibility and as a rule a speedier outcome than the current
infringement procedure based on Article 169 , even in cases such as
lA SpeTiia (Order 194/88-R of 27 September 1988) in which the Commission
obtains from the Court of Justice by way of suiranary procedure conservation
measures suspending the contract award procedure . Even where the reference
to the Court is accompanied by a request for suspension , the infringement
procedure based on Article 169 is stl.11 cumbersome and unsuited to the
speedy correction of failures by individual contracting authorities to
fulfil their particular obligations .
 ---pagebreak---                                      - 19 -
 15 . The period, of standstill provided for in Article 4 is limited to three
 months only and at the end of that period the contracting authority is
again entitled to award the contract , without prejudice to the subsequent
bringing by the Commission or by the contractor/supplier of an action to
determine the legality of the award in the light of Community or national
law .
16 . The amendments embodied in the wording of the new Article 5 are
intended to take account of the response to the initial proposal from
Parliament , various sectors of industry and representatives of national
governments who feared that the Commission might he endowed with extensive
powers without there being at the same time any clear-cut guarantees that
it would not abuse them .
17 . The Commission intends , therefore , to delimit clearly its power of
suspension by stating first of all, in Article 5(1 ) that it cannot intervene
once the contract has been finally concluded , so as not to undermine the
principle of legal oertainty . Secondly , it has limited the number of cases
of clear and manifest infringement in which it can take a decision
suspending an award procedure . Cases (a), (b) and (c) relate in fact to
procedural irregularities . The new wording of Article 5(2) describes in
greater detail the workings of the suspension arrangements .
 ---pagebreak---                                      - 20 -
 18 . Two new elements have been introduced to enphasize the limited nature
 of the Commission 's power of suspension .
 19 . The first element is a procedural one . It provides that the Commission
will have to undertake to reconsider its decision to suspend the award
procedure if requested to do so by the Member State to which the
contracting authority is answerable . The importance of such a request must
be stressed for it will enable the Member State concerned to ensure that
all    factors   that  appear   relevant    have been  properly  taken   into
consideration .
20 . The second element is a reminder of the guarantees that exist under
the Treaty as regards remedies against misuse of powers by the Commission .
Member States , the contracting authority and the injured firm or firms may ,
if the Commission abuses its power of suspension , Invoke Article 173 of the
Treaty in order to bring an action before the Court of Justice in respect
of the decision to suspend the award procedure . Such an action may be
brought with a view to seeking annulment by the Court of the contested act
(cf . Article 174 of the Treaty) and recovering damages from the Commission
(Articles 215 and 178 of the Treaty). Moreover , under Articles 185 and 186
of the Treaty , Member States , the contracting authority and the injured
firm or firms may , when they bring their action, seek an order from the
Court suspending the application of the Commission 's decision .
21 . In short , there are many moans of redress available which should help
allay to a large extent any fears about the proposed power of suspension .
 ---pagebreak---                                     - 21
                             Amended proposai for a
                               COUNCIL DIRECTIVE
       on the coordination of the laws , regulations and administrative
         provisions relating to the application of Community rules on
             procedures for the award of public supply and public
                                               1
                               works contracts
 THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
 Having regard to the Treaty establishing the European Economic Community,
 and in particular Article 100a thereof ,
 Having regard to the proposal from the Commission ,
 In cooperation with the European Parliament ,
Having regard to the opinion of the Economic and Social Committee ,
Whereas the Community rules on public procurement , in particular the Council
Directives on public supply contracts and those on public works contracts
do not include any specific provisions ensuring their effective application ;
Whereas the arrangements that exist at both national and Community levels
for monitoring their application are not adequate to ensure strict compliance
with the relevant Community provisions before violation of the latter becomes
i rreparable ;
Whereas the opening-up of public procurement to Community competition
necessitates a substantial increase in the guarantees of transparency and
non-discrimination and whereas , for it to have tangible effects , any offences
committed during contract award procedures must be effectively and rapidly
censured ;
10J No C 230, 28.8.1987, p. 6 .
 ---pagebreak---                                         - 22 -
 Whereas the absence or inadequacy of effective administrative or judicial
                                               «
  remedies in a number of Member States deters Community undertakings from
 submitting tenders in the Member State in which the contract authority is
 established and whereas , therefore , the Member States concerned must put
 an end to this state of affairs by introducing proper remedies ;
 Whereas , since procedures for the award of public contracts are of such
 short duration , the competent administrative or judicial body must be
 authorized to take interim measures aimed , among other things , at suspending
 the contract award procedure or the implementation of the decision taken by
 the contracting authority ;
Whereas the Commission must be able , in the course of an administrative or
judicial procedure , to ensure that the competent body respects the precedence
of Community law and present to it the purpose of the Community rules ;
Whereas the specific nature of infringements of Community rules on public
procurement , which stems from the fact that procedures for the award of
public contracts are of such short duration , means that such infringements
need to be dealt with urgently ;
Whereas undertakings are sometimes unwilling to take action against
contracting authorities for fear of damaging their relations with those
authorities , and whereas this means in particular that the number of interim
measures requested by way of summary procedure by undertakings with a view
to the suspension of contract award procedures , even where these are
manifestly irregular , is likely to remain small ;
Whereas , accordingly, the Commission , in its capacity as guardian of the
Community rules , must be free to suspend a contract award procedure in clearly
defined cases of infringement for a limited period in order to prevent any
irreparable harm that might result if the contract were awarded unlawfully;
 ---pagebreak---                                       - 23 -
 Whereas the Treaty makes provision for an appeal to the Court of Justice of
 the European Communities coupled , where necessary , with an application to
 suspend execution , against an illegal decision by the Commission to suspend
a contract award procedure ,
HAS ADOPTED THIS DIRECTIVE :
ARTICLE 1
1.   Member States shall take the measures necessary to ensure / at all stages
     of the procedure for the award of public contracts , that any contractor
     or supplier taking part in a procedure for the award of a public supply
     or public works contract / or any third person entitled to tender for such
     an award , can seek effective and rapid administrative and judicial
     remedies in respect of any decision by a contracting authority , as defined
     by the Community rules on public procurement , which infringes Community
     or national rules on public procurement .
ARTICLE 2
1.   The measures provided for in paragraph 1 shall confer the power enabling
     the competent administrative or judicial body to :
     ( a ) take , at the earliest opportunity and by way of interlocutory
           procedure , interim measures , including measures to suspend the
           procedure for the award of the public contract concerned , or
           the implementation of the decision taken by the contracting
           authority ;
     ( b ) order the removal , subject to the imposition of penalty payments ,
           of discriminatory technical , economic or financial specifications
           in the invitation to tender , the contract documents or in any
           other such document ;
     ( c ) set aside decisions taken unlawfully and award damages to the
           injured undertaking , without prejudice to the effect on the
           contract concerned which may arise , under national law , from
           setting aside a decision .
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 2.  For the purposes of Article 1 and paragraph 1 of this Article / the
     competent administrative body shall be empowered , where it decides
     on complaints, to monitor and enforce observance of its decisions
     effectively .
3.   Where the measures provided for in paragraph 1(a ) are taken by an
     administrative body , the reasons for its decisions shall always be
    given .
     Furthermore , in this case , provision must be made for procedures
    whereby any illegal measure taken by the competent administrative
    body or any defect in the exercise of the powers conferred on it
    can be the subject of judicial review .
ARTICLE 3
Member States shall ensure that the competent administrative and judicial
bodies allow the Commission to ensure respect for the precedence of
Community law in the course of the administrative or judicial procedure
referred to in Article 2 .
ARTICLE 4
The Commission may , in case of urgency , suspend a contract award procedure
in accordance with Article 5 for a period that may not exceed three months .
ARTICLE 5
1.  The decision to suspend a contract award procedure may be taken at any
    stage of the proced ure before the award is made where the Commission
    establishes that :
    ( a ) a tender notice has not been published in the Official Journal of
          the European Communities ;
    ( b ) improper recourse has been had to a negotiated procedure without
          prior publication of a tender notice ;
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      ( c ) a tender notice ( published nationally and in the Official Journal of
            the European Communities ) and any other document Laying down the
            contract award conditions contains administrative , financial , economic
            or technical clauses that are incompatible with Community law ;
     (d ) a contractor or supplier has been excluded from participation in the
            tendering procedure in violation of the Community rules .
2.   The decision to suspend the procedure shall be notified to the contracting
     authority and to the Member State to which the latter is answerable . The
     Commission may publish its decision in the Official Journal of the European
    Communities .
    The Commission shall ask the contracting authority to rectify the infringe ¬
    ment as soon as possible and to notify the Commission accordingly . When the
    infringement has been rectified within the period provided for in Article 4 ,
    the award procedure shall be resumed .
    Without prejudice to Article 173 of the Treaty , the Commission shall reconsider
    its decision if requested to do so by the Member State to which the contracting
    authority is answerable .
ARTICLE 6
Member States shall bring into force , not later than . . the
measures necessary to comply with this Directive . They shall communicate to the
Commission the texts of the main national laws > regulations and administrative
provisions which they adopt in implementation of this Directive .
ARTICLE 7
This Directive is addressed to the Member States .
Done at                                                               For the Counci l
                                                                      The President