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

Directive No 89/665 requires the Member States to take the necessary measures to ensure that, as regards contracts falling within the scope of Directive No 2004/18, decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible in cases of infringement of European law in the field of public procurement or national rules transposing that law.
Bodies designated …

Purpose of the action

Directive No 89/665 requires the Member States to take the necessary measures to ensure that, as regards contracts falling within the scope of Directive No 2004/18, decisions taken by the contracting authorities may be reviewed effectively and as rapidly as possible in cases of infringement of European law in the field of public procurement or national rules transposing that law.

Bodies designated by the Member States may thus, pursuant to Article 2(1), take interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority; set aside decisions taken unlawfully, including technical, economic or financial specifications; award damages to persons harmed by an infringement. In exercising these powers, the body responsible for review procedures may have to carry out a balancing of the interests in question and may decide not to grant such measures when their negative consequences could exceed their benefits  or, where it decides an application for interim measures, to take account of the prospects of success of an application for a decision of the contracting authority to be set aside on the ground that it was unlawful . The contracting authority which is requested by an economic operator to  disclose information deemed confidential contained in the tender of a  competitor to which the contract has been awarded is not required to communicate that information where its disclosure would infringe the  rules of EU law relating to the protection of confidential information,  even if that request is made in the context of an action brought by that operator challenging the lawfulness of the contracting authority’s assessment of the competitor’s tender. However, in order to weigh the applicant’s right to an effective remedy against the competitor’s right to protection of its confidential information and trade secrets, the national court, hearing an action brought against a decision of a contracting authority refusing to disclose to an economic operator such information or an action brought against the decision of a  contracting authority dismissing an application for administrative  review lodged against such a refusal decision must, in order to examine all the relevant matters of fact and of law and determine whether that information can be disclosed, have at its disposal the information required, including confidential information and trade secrets. It must also be able to annul the refusal decision or the decision dismissing the application for administrative review if they are unlawful and, where appropriate, refer the case back to the contracting authority, or itself adopt a new decision if it is permitted to do so under its national  law .

Claims for invalidity may take place at various stages of the procurement procedure: upstream, operators may thus rely on the incompatibility of a clause of the invitation for tenders with the EU rules ; downstream, a tenderer whose tender has not been selected must be able to ask for the annulment of a decision awarding the contract to a third party . The Member States must also guarantee the right for tenderers to apply for annulment of the decision to withdraw an invitation to tender on the ground that it infringes EU law .

In an action for damages, nothing prevents the body responsible for hearing review procedures from raising of its own motion a ground for unlawfulness of the decision other than the ground claimed by the applicant, provided that the exercise of that possibility does not result in the dismissal of the application on the ground that the harm would have been caused even in the absence of the unlawfulness alleged by the tenderer .

Directive No 2007/66 of 11 December 2007 has introduced two new rules. Seeking review with the contracting authority (Directive No 89/665, Article 1(5)) or a review body (Directive No 89/665, new Article 2(3)) now results in suspending the conclusion of the contract, if suspension has not already taken place. New Article 2(d) allows the harmed operator to obtain that the contract concluded without call for tender or in breach of the causes of suspension provided for in Articles 1(5) and 2(3) be ineffective. The consequences of a contract being considered ineffective are provided for by national law which may provide for the retroactive cancellation of all contractual provisions or limit the scope of the cancellation to those obligations which still have to be performed. In the latter case, Member States may provide for the application of alternative penalties which, according to Article 2(e), may consist in imposing fines on the contracting entity or the shortening of the duration of the contract. However, where a contract is awarded without prior publication of a contract notice in the Official Journal of the EU without this being permissible in accordance with Directive No 2014/24, the fifth indent of Article 2(4) excludes the finding that the contract is ineffective where the conditions set out in the directive are met .

Case C-424/01 CS Austria [2003] ECR I-3249, LawLex200900000785JBJ.

Case C-927/19 ‘Klaipėdos regiono atliekų tvarkymo centras’ UAB and others, Judgment of 7 September 2021, LawLex202100005500JBJ.

Case C-448/01 EVN and Wienstrom [2003] ECR I-14527, LawLex200900000865JBJ; Case C-314/01 Siemens and ARGE Telekom [2004] ECR I-2549, LawLex200900001462JBJ. 

Case C-81/98 Alcatel Austria and others [1999] ECR I-7671, LawLex200700001827JBJ.

Case C-15/04 Koppensteiner [2005] ECR I-4855, LawLex200900000590JBJ: the conditions set out in Article 2(4) are met if the contracting authority considers that the award of the contract with prior publication of a contract notice in the Official Journal is authorized under Directive No 2014/24 if the contracting authority has published in the OJEU a notice expressing its intention to conclude the contract and if the contract has not been concluded before the expiry of a period of at least 10 calendar days with effect from the day following the date of the publication of that notice.

Case C-315/01 Gesellschaft für Abfallentsorgungs-Technik GmbH [2003] ECR I-563, LawLex200900001463JBJ.

Case C-19/13 Ministero dell'Interno v Fastweb spa, Telecom Italia, Judgment of 11 September 2014, LawLex201400000879JBJ.

European Business Law

305. Purpose of the action

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

305. Purpose of the action

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise