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

In order to guarantee the full exercise of rights, Directive No 89/665, in its amended version , fixes both standstill periods and time limits for review.
1) Standstill period.
Firstly, the conclusion of a contract may be suspended where the person concerned first seeks review with the contracting authority, which then cannot conclude the contract before the expiry of a period of ten days with eff …

Modes of action

In order to guarantee the full exercise of rights, Directive No 89/665, in its amended version , fixes both standstill periods and time limits for review.

Firstly, the conclusion of a contract may be suspended where the person concerned first seeks review with the contracting authority, which then cannot conclude the contract before the expiry of a period of ten days with effect from the day following the date on which the contracting authority has sent a reply if fax or other electronic means are used, or fifteen days if other means of communication are used. Then, where an application is made against the decision awarding the contract, that contract cannot be concluded before the review body has made a decision on the application either for interim measures or for review. The suspension ends no earlier than the expiry of the ten-day standstill period with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used, or fifteen days if other means of communication are used (Directive No 89/665, Article 2(3)) . Before the coming into force of those provisions, the ECJ had considered that by failing to lay down a mandatory period for the contracting authority to notify the decision on the award of a contract to all the tenderers and by failing to provide for a mandatory waiting period between the award of the contract and its conclusion, a Member State had failed to fulfill its obligations pursuant to the Remedies Directive .

The time-period for applying for review is set forth in Article 2(c) of the directive, as amended by Directive No 2007/66. Where a Member State provides that any application for review of a contracting authority's decision must be made before the expiry of a specified period, this period must be at least ten calendar days with effect from the day following the date on which the contracting authority's decision is sent to the tenderer or candidate if fax or electronic means are used or, if other means of communication are used, either at least fifteen calendar days with effect from the day following the date on which the contracting authority's decision is sent to the tenderer or candidate, or at least ten calendar days with effect from the day following the date of receipt of the contracting authority's decision. The contracting authority's decision is communicated to each tenderer or candidate accompanied by a summary of the relevant reasons. 

These new rules do not challenge the answers provided by the Court of Justice in cases where it was called upon to interpret the initial provisions of Directive No 89/665. Thus, national law which imposes on tenderer to bring proceedings “promptly and in any event within three months” against a contract award procedure is contrary to Article 1 of Directive No 89/665, where it leaves discretion to the competent court to assess the limitation period . Moreover, according to the European Court of Justice, the period for review starts to run only from the date on which the claimant knew, or ought to have known, of the infringement of the rules on the contract award procedure, and not from the infringement itself . The corollary of this principle is that the rules governing the notification of the contracting authorities' and entities' award decisions and their reasoning to tenderers cannot be defined in such a way that by the time tenderers are fully informed of the reasons for the rejection of their offer, the standstill period for the conclusion of the contract has already expired . A time-limit laid down in national law cannot be relied on against a tenderer harmed by a decision, even if the duration is reasonable, where, due to its unpredictable conduct, the contracting authority has made it excessively difficult for that tenderer to exercise the rights conferred on him by the EU legal order . Likewise, a limitation period which fixes a time-period expiring after the end of the award procedure, where it bars access to a review against the contracting authority's acts after the date fixed , or a national law which requires an unsuccessful tenderer to summons the contracting authority to fulfill its obligations before bringing any pre-contractual proceedings, and establishes a ten-day period within which to respond which does not suspend that ten-day period between the notification of the decision to award the contract and the signing of the contract, insofar as such a rule may preclude bringing an action at a stage where infringements of European law may still be corrected , are contrary to directive No 89/665. Lastly, a national law which does not clearly indicate that a review is possible not only against the final decision to award the contract, but also against interim decisions, does not guarantee tenderers effective legal remedies within the meaning of Article 1 of Directive No 89/665 .

Directive No 2007/66 has also introduced a new sanction in order to more effectively fight the conclusion of public contracts without competitive tender: the ineffectiveness of the contract . According to Article 2(f) of the directive, the review aimed at rendering a contract that has been unlawfully concluded ineffective may be applied before the expiry of at least thirty calendar days with effect from the day following the date on which the contracting authority has published a contract award notice or the date on which the contracting authority informed the tenderers and candidates concerned of the conclusion of the contract and in any cases, before the expiry of at least six months with effect from the day following the date of conclusion of the contract.

By Directive No 2007/66 of 11 December 2007, OJ L 335 of 20 December 2007, 31.

Case C-303/22 CROSS Zlín (AS), Judgment of 18 January 2024, LawLex202400004561JBJ, Articles 2(3) and 2a(2) of Directive No 89/665, as amended by Directive No 2014/23, do not preclude national legislation which prohibits the contracting authority from concluding a public procurement contract only until the date on which the body of first instance, within the meaning of that Article 2(3), rules on the review of the judgment awarding that contract, it being irrelevant  whether or not that review body is of a judicial nature being immaterial or not.

Case C-212/02 Commission v Austria (unpublished); C-444/06 Commission v Spain [2008] ECR I-2045, LawLex200900000859JBJ.

Case C-406/08 Uniplex (UK) [2010] ECR I-817, LawLex201100000323JBJ and C-456/08 Commission v Ireland [2010] ECR I-859, LawLex201100000344JBJ.

Case C-406/08 Uniplex (UK) [2010] ECR I-817, LawLex201100000323JBJ.

Case C-455/08 Commission v Ireland [2009] ECR I-225 Summ. pub.

Case C-327/00 Santex [2003] ECR I-1877, LawLex200900000357JBJ; C-241/06 Lämmerzahl [2007] ECR I-8415, LawLex200900000892JBJ.

Case C-241/06 Lämmerzahl [2007] ECR I-8415, LawLex200900000892JBJ.

Case C-327/08 Commission v France [2009] ECR I-102, Summ. pub..

Case C-456/08 Commission v Ireland, LawLex201100000344JBJ.

European Business Law

306. Modes of action

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

306. Modes of action

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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