European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The “Remedies” Directive No 89/665 of 21 December 1989  supplements Directive No 2014/24 of 26 February 2014 on procedures for the award of public works contracts, public supply contracts and public service contracts. A specific directive governs remedies in the special sectors referred to by Directive No 2014/25 of 26 February 2014. The Remedies Directive, which is aimed at ensuring and supervisi …

Conditions for bringing proceedings

The “Remedies” Directive No 89/665 of 21 December 1989  supplements Directive No 2014/24 of 26 February 2014 on procedures for the award of public works contracts, public supply contracts and public service contracts. A specific directive governs remedies in the special sectors referred to by Directive No 2014/25 of 26 February 2014. The Remedies Directive, which is aimed at ensuring and supervising compliance with the European rules on public contracts by the setting-up of specific remedies , was last amended by Directive No 2007/66 of 11 December 2007 , which is aimed at reinforcing the efficiency of the system and by Directive No 2014/23, which extended its scope of application to cover concession contracts. 

Pursuant to Article 1 of Directive No 89/665, the Member States shall take all the measures necessary to ensure that decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible, where such decisions have infringed European law in the field of public procurement or national rules implementing that law . The remedy must be available to any person having or having had an interest in obtaining a particular contract or who has been or risks being harmed by an alleged infringement. 

Pursuant to that provision, the decision not to initiate a formal procedure of invitation to tenders  or the withdrawal of an invitation to tender  are reviewable acts insofar as they produce legal effects. On the other hand, mere procedural acts may be excluded from the remedy right guaranteed by Directive No 89/665, unless they decide, directly or indirectly, the substantive issues of the case, render it impossible to continue the procedure or to conduct a defense, or cause irreparable harm to legitimate rights or interests . The first expression of intent of the contracting authority in connection with a contract, such as entering into specific contractual negotiations with an operator, does not constitute a mere preparatory work or preliminary study but a decision against which there is a right of appeal .

Irrespective of the formal capacity of the tenderer or candidate, the action is available to any person having or having had an interest in obtaining the contract or who has been or is at risk of being harmed by an infringement of the rules on call for tenders . It results that although an action against the decision awarding a contract is available even to an operator who has not submitted any offer, in particular in the case of a contract awarded without competitive call to tender, it cannot be exercised by an operator who has submitted no offer because he considered that he did not fulfill the discriminatory conditions laid down in the contract notice and did not seek review of the specifications which he alleges are unlawful . Moreover, national legislation cannot prevent a tenderer from contesting the lawfulness of the decision of the contracting authority not to consider his bid as the best bid on the ground that his bid should have been eliminated at the outset for other reasons, where it would deny him the possibility of contesting the admissibility decision . Similarly, an action for review of the decision awarding that contract brought by the tenderer cannot be declared inadmissible as a consequence of the examination of the preliminary plea of inadmissibility on the grounds that the tenderer seeking review lacked standing to challenge the award because its bid should have been rejected by the contracting authority by reason of its non-conformity with the technical requirements under the tender specifications, without examining whether those technical requirements were met both by the bid submitted by the successful tenderer, which won the contract, and by the bid submitted by the tenderer which brought the main action for review . Where a consortium without legal personality grouping together several economic operators has tendered without being awarded the contract, the directive precludes neither national law from providing that all the members must act together , nor, on the other hand, national law which allows an individual member of the consortium to bring an action against the decision awarding the contract . Lastly, an operator who has participated in a contract award procedure cannot be regarded as having lost his interest in obtaining the contract and therefore in bringing proceedings, on the ground that he failed to refer the case to a conciliation committee before seeking a review against the decision awarding the contract to another tenderer, whilst such a formality is not in keeping with the objectives of speed and effectiveness of the directive . However, Union law does not preclude national legislation which does not allow economic operators to bring an action against the decisions of a contracting authority relating to a tendering procedure in which they have decided not to participate on the ground that the legislation applicable to that procedure made the award to them of the contract concerned very unlikely, where the application of that legislation in practice is not liable to affect the right of the economic operators concerned to effective judicial protection .

This remedy, offered particularly to evicted tenderers, is to be distinguished from the remedy for failure to fulfill obligations that the Commission may exercise on the basis of Article 258 TFEU and which is aimed at protected the general interest: Case C-17/09 Commission v Germany, [2010] ECR I-4, Summ. pub.; Case C-275/08 Commission v Germany [2009] ECR I-168, Summ. pub. This objective difference justifies the fact that the Commission acts even after expiration of the period prescribed for internal remedies. However, the Commission's action is admissible only if the contract has not been completed yet on the date of the reasoned opinion: C-125/03 Commission v Germany [unpublished]; C-217/06 Commission v Italy [2007] ECR I-132, Summ. pub.; C-237/05 Commission v Greece [2007] ECR I-8203, LawLex200900000837JBJ; C-536/07 Commission v Germany [2009] ECR I-10355, LawLex201100000271JBJ; C-199/07 Commission v Greece [2009] ECR I-10669, LawLex201100000487JBJ.

Case C-249/01 Hackermüller [2003] ECR I-6319, LawLex200900000928JBJ.

Case C-100/12 Fastweb SpA, Judgment of 4 July 2013, LawLex201300001064JBJ.

Case C-129/04 Espace Trianon and Sofibail [2005] ECR I-7805, LawLex200900000490JBJ.

Case C-492/06 Consorzio Elisoccorso San Raffaele [2007] ECR I-8189, LawLex200900000986JBJ.

Case C-230/02 Grossmann Air Service [2004] ECR I-1829, LawLex200900001304JBJ; C-410/01 Fritsch, Chiari & Partner and others [2003] ECR I-6413, LawLex200900000726JBJ.

Case C-328/17 Amt Azienda Trasporti e Mobilità SpA Judgment of 28 November 2018, LawLex201800001924JBJ.

Case C-166/14  MedEval Qualitäts, Judgment of 26 November 2015, LawLex201500001543JBJ, holding that the principle of effectiveness, precludes national legislation which makes bringing an action for damages in respect of the infringement of a rule of public procurement law subject to a prior finding that the public procurement procedure for the contract in question was unlawful because of the lack of prior publication of a contract notice, where the action for a declaration of unlawfulness is subject to a six-month limitation period which starts to run on the day after the date of the award of the public contract in question, irrespective of whether or not the applicant in that action was in a position to know of the unlawfulness affecting the decision of the awarding authority.

Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, LawLex200900001005JBJ.

Case C-92/00 HI [2002] ECR I-5553, LawLex200900001209JBJ.

Case C-214/00 Commission v Spain [2003] ECR I-4667, LawLex200900001233JBJ.

Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I-1, LawLex200900001005JBJ. 

Case C-230/02 Grossmann Air Service [2004] ECR I-1829, LawLex200900001304JBJ.

European Business Law

303. Conditions for bringing proceedings

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Les décisions de justice citées dans ce paragraphe :

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303. Conditions for bringing proceedings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise