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

No C 15/8                            Official Journal of the European Communities                                    19. 1. 89
              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 (')
                                               COM(88) 733 final — SYN 89
              (Submitted by the Commission to the Council under Article 149 (3) of the EEC Treaty on
                                                     25 November 1988)
                                                        (89/C 15/07)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           Whereas, since procedures for the award of public
                                                                   contracts are of such short duration, the competent
                                                                   administrative or judicial body must be authorized to
 Having regard to the Treaty establishing the European             take interim measures aimed, among other things, at
 Economic Community, and in particular Article 100a                suspending the contract award procedure or the
 thereof,                                                          implementation of the decision taken by the contracting
                                                                   authority;
 Having regard to the proposal from the Commission,                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
In cooperation with the European Parliament,                       law and present to it the purpose of the Community rules;
                                                                   Whereas the specific nature of infringements of
Having regard to the opinion of the Economic and                   Community rules on public procurement, which stems
Social Committee,                                                  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 the Community rules on public procurement, in
particular the Council Directives on public supply
contracts and those on public works contracts do not                Whereas undertakings are sometimes unwilling to take
include any specific provisions ensuring their effective           action against contracting authorities for fear of damaging
application;                                                       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,
Whereas the arrangements that exist at both national    and        even where these are manifestly irregular, is likely to
Community levels for monitoring their application        are       remain small;
not adequate to ensure strict compliance with            the
relevant Community provisions before violation of        the
latter becomes irreparable;                                       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
Whereas the opening-up of public procurement to                    infringement for a limited period in order to prevent any
Community competition necessitates a substantial                  irreparable harm that might result if the contract were
increase in the guarantees of transparency and non-               awarded unlawfully;
discrimination and whereas, for it to have tangible
effects, any offences committed during contract award              Whereas the Treaty makes provision for an appeal to the
procedures must be effectively and rapidly censured;               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
Whereas the absence or inadequacy of effective adminis-           contract award procedure,
trative or judicial remedies in a number of Member
States deters Community undertakings from submitting
tenders in the Member State in which the contracting              HAS ADOPTED THIS DIRECTIVE:
authority is established and whereas, therefore, the
Member States concerned must put an end to this state
of affairs by introducing proper remedies;                                                  Article 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
(') OJ No C 230, 28. 8. 1987, p. 6.                               procedure for the award of a public supply or public works
 ---pagebreak---  19. 1. 89                               Official Journal of the European Communities                                No C 15/9
 contract, or any third person entitled to tender for such an                                  Article 4
 award, can seek effective and rapid administrative and
judicial remedies in respect of any decision by a contracting        The Commission may, in case of urgency, suspend a
 authority, as defined by the Community rules on public             contract award procedure in accordance with Article 5 for a
procurement, which infringes Community or national rules           period that may not exceed three months.
 on public procurement.
                                                                                               Article 5
                                                                    1.     The decision to suspend a contract award procedure
                            Article 2
                                                                    may be taken at any stage of the procedure before the
 1.     The measures provided for in paragraph 1 shall confer       award is made where the Commission establishes that:
 the power enabling the competent administrative or judicial        (a) a tender notice has not been published in the Official
 body to:                                                               Journal of the European Communities;
 (a) take, at the earliest opportunity and by way of interlo-       (b) improper recourse has been had to a negotiated
      cutory procedure, interim measures, including measures            procedure without prior publication of a tender notice;
      to suspend the procedure for the award of the public          (c) a tender notice (published nationally and in the
      contract concerned, or the implementation of the                   Official Journal of the European Communities) and
      decision taken by the contracting authority;                       any other document laying down the contract award
                                                                         conditions contains administrative, financial, economic
 (b) order the removal, subject to the imposition of penalty             or technical clauses that are incompatible with
      payments, of discriminatory technical, economic or                 Community law;
     financial specifications in the invitation to tender, the
                                                                    (d) a contractor or supplier has been excluded from partici-
      contract documents or in any other such document;                 pation in the tendering procedure in violation of the
                                                                         Community rules.
 (c) set aside decisions taken unlawfully and award
      damages to the injured undertaking, without prejudice         2.     The decision to suspend the procedure shall be notified
      to the effect on the contract concerned which may arise,      to the contracting authority and to the Member State to
      under national law, from setting aside a decision.            which the latter is answerable. The Commission may
                                                                   publish its decision in the Official Journal of the
 2.     For the purposes of Article 1 and paragraph 1 of this       European Communities.
Article, the competent administrative body shall be                  The Commission shall ask the contracting authority to
 empowered, where it decides on complaints, to monitor and          rectify the infringement as soon as possible and to notify the
 enforce observance of its decisions effectively.                   Commission accordingly. When the infringement has been
                                                                    rectified within the period provided for in Article 4, the
 3.     Where the measures provided for in paragraph 1 (a)          award procedure shall be resumed.
 are taken by an administrative body, the reasons for its            Without prejudice to Article 173 of the Treaty, the
 decisions shall always be given.                                   Commission shall reconsider its decision if requested to do
                                                                    so by the Member State to which the contracting authority
 Furthermore, in this case, provision must be made for              is answerable.
procedures whereby any illegal measure taken by the
 competent administrative body or any defect in the exercise                                   Article 6
 of the powers conferred on it can be the subject of judicial
 review.                                                            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
                            Article 3                               the main national laws, regulations and administrative
                                                                   provisions which they adopt in implementation of this
 Member States shall ensure that the competent adminis-             Directive.
 trative and judicial bodies allow the Commission to ensure
 respect for the precedence of Community law in the course                                     Article 7
 of the administrative or judicial procedure referred to in
Article 2.                                                         This Directive is addressed to the Member States.