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 92/13 of 25 February 1992 , last amended by Directive No 2007/66 of 11 December 2007 , whose provisions are greatly inspired by Directive No 89/665, only applies to contracts falling within the scope of Directive No 2014/25. 
Like Directive No 89/665, Directive No 92/13 aims to guarantee the existence of effective review as rapidly as possible against the contracting entities' decisio …

Conditions for review

Directive No 92/13 of 25 February 1992 , last amended by Directive No 2007/66 of 11 December 2007 , whose provisions are greatly inspired by Directive No 89/665, only applies to contracts falling within the scope of Directive No 2014/25. 

Like Directive No 89/665, Directive No 92/13 aims to guarantee the existence of effective review as rapidly as possible against the contracting entities' decisions which infringe European law on public contracts or national provisions which implement them. The review must be available to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.

However, whilst Directive No 89/665 provides that measures taken for purposes of review may result in the taking of interim measures with the aim of correcting the alleged infringement, setting aside or ensuring the setting aside of decisions taken unlawfully, or discriminatory specifications in the documents relating to the invitation to tender or in the contract documents, and awarding damages, Directive No 92/13 offers Member States an option between those measures and the possibility to take other measures by way of interlocutory procedure, and particularly to make an order for the payment of a particular sum, in cases where the infringement has not been corrected or prevented (Article 2(1)). This sum must be set at a level high enough to dissuade the contracting entity from committing or persisting in an infringement (Article 2(5)). Pursuant to that provision, a Member State may confer on the court the setting of the amount of the penalty payment, which must not necessarily be definitive .

Initially, Directive No 92/13 also provided for two mechanisms aimed at favoring the achievement of the objectives of Directive No 2004/17. An attestation system should enable the contracting entities to have the conformity of their contract award procedures examined periodically by independent persons . Since this procedure has almost never been used and its maintenance requires significant administrative operating costs for the Member States, the system was abolished by Directive No 2007/66. The same goes for the conciliation mechanism provided for by Directive No 92/13, by reason of the lack of interest from economic operators for that procedure due to the fact that it was not binding .

Since Directive No 2007/66, a standstill period of at least ten calendar days between the decision to award a contract and the conclusion of that contract allows the unsuccessful tenderers to effectively challenge the decision to award the contract . A new sanction should also facilitate the struggle against the practice of contracts being awarded without invitation to tender: contracts concluded in breach of Directive No 2014/25 may now be ineffective . The consequences of a contract being considered ineffective are provided for by national law, which may choose either the retroactive cancellation of the contract or the cancellation of those obligations which still have to be performed.

Case C-225/97 Commission v France [1999] ECR I-3011, LawLex200700001810JBJ.

Case C-225/97 Commission v France [1999] ECR I-3011, LawLex200700001810JBJ: France being condemned for having considered that this procedure was optional.

See Directive No 2007/66, recitals 29 and 30.

Directive No 92/13, new Article 2(a). On the possibility for an unsuccessful bidder to appeal against the decision of the contracting entity, regardless of the stage of the public procurement procedure, and to raise any plea against it, see Case C-771/19 NAMA Symvouloi Michanikoi kai Meletites AE and others, Judgment of 24 March 2021, LawLex202100004915JBJ.

European Business Law

307. Conditions for review

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

307. Conditions for review

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise