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European Procurement Directives: EC directive 89/66
COUNCIL DIRECTIVE of 21 December 1989
on the coordination of the laws, regulations and administrative provisions
relating to the application of review procedures to the award of public
supply and public works contracts
(89/665/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
and in particular Article 100a thereof,
Having regard to the proposal from the Commission (1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas Community Directives on public procurement, in particular Council
Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures
for the award of public works contracts (4), as last amended by Directive
89/440/EEC (5), and Council Directive 77/62/EEC of 21 December 1976 coordinating
procedures for the award of public supply contracts (6), as last amended
by Directive 88/295/EEC (7), do not contain any specific provisions ensuring
their effective application;
Whereas the existing arrangements at both national and Community levels
for ensuring their application are not always adequate to ensure compliance
with the relevant Community provisions particularly at a stage when infringements
can be corrected;
Whereas the opening-up of public procurement to Community competition
necessitates a substantial increase in the guarantees of transparency
and non-discrimination; whereas, for it to have tangible effects, effective
and rapid remedies must be available in the case of infringements of Community
law in the field of public procurement or national rules implementing
that law;
Whereas in certain Member States the absence of effective remedies or
inadequacy of existing remedies deter
(1) OJ No C 230, 28. 8. 1987, p. 6 and OJ No C 15, 19. 1. 1989, p. 8.
(2) OJ No C 167, 27. 6. 1988, p. 77 and OJ No C 323,
27. 12. 1989.
(3) OJ No C 347, 22. 12. 1987, p. 23.
(4) OJ No L 185, 16. 8. 1971, p. 5.
(5) OJ No L 210, 21. 7. 1989, p. 1.
(6) OJ No L 13, 15. 1. 1977, p. 1.
(7) OJ No L 127, 20. 5. 1988, p. 1.
Community undertakings from submitting tenders in the Member State in
which the contracting authority is established; whereas, therefore, the
Member States concerned must remedy this situation;
Whereas, since procedures for the award of public contracts are of such
short duration, competent review bodies must, among other things, be authorized
to take interim measures aimed at suspending such a procedure or the implementation
of any decisions which may be taken by the contracting authority; whereas
the short duration of the procedures means that the aforementioned infringements
need to be dealt with urgently;
Whereas it is necessary to ensure that adequate procedures exist in all
the Member States to permit the setting aside of decisions taken unlawfully
and compensation of persons harmed by an infringement;
Whereas, when undertakings do not seek review, certain infringements may
not be corrected unless a specific mechanism is put in place;
Whereas, accordingly, the Commission, when it considers that a clear and
manifest infringement has been committed during a contract award procedure,
should be able to bring it to the attention of the competent authorities
of the Member State and of the contracting authority concerned so that
appropriate steps are taken for the rapid correction of any alleged infringement;
Whereas the application in practice of the provisions of this Directive
should be re-examined within a period of four years of its implementation
on the basis of information to be supplied by the Member States concerning
the functioning of the national review procedures,
HAD ADOPTED THIS DIRECTIVE:
Article 1
1. The Member States shall take the measures necessary to ensure that,
as regards contract award procedures falling withing the scope of Directives
71/305/EEC and 77/62/EEC, decisions taken by the contracting authorities
may be reviewed effectively and, in particular, as rapidly as possible
in accordance with the conditions set out in the following Articles, and,
in particular, Article 2 (7) on the grounds that such decisions have infringed
Community law in the field of public procurement or national rules implementing
that law.
2. Member States shall ensure that there is no discrimination between
undertakings claiming injury in the context of a procedure for the award
of a contract as a result of the distinction made by this Directive between
national rules implementing Community law and other national rules.
3. The Member States shall ensure that the review procedures are available,
under detailed rules which the Member States may establish, at least to
any person having or having had an interest in obtaining a particular
public supply or public works contract and who has been or risks being
harmed by an alleged infringement. In particular, the Member States may
require that the person seeking the review must have previously notified
the contracting authority of the alleged infringement and of his intention
to seek review.
Article 2
1. The Member States shall ensure that the measures taken concerning the
review procedures specified in Article 1 include provision for the powers
to:
(a) take, at the earliest opportunity and by way of interlocutory procedures,
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;
(b) either set aside or ensure the setting aside of decisions taken unlawfully,
including the removal of discriminatory technical, economic or financial
specifications in the invitation to tender, the contract documents or
in any other document relating to the contract award procedure;
(c) award damages to persons harmed by an infringement.
2. The powers specified in paragraph 1 may be conferred on separate bodies
responsible for different aspects of the review procedure.
3. Review procedures need not in themselves have an automatic suspensive
effect on the contract award procedures to which they relate.
4. The Member States may provide that when considering whether to order
interim measures the body responsible may take into account the probable
consequences of the measures for all interests likely to be harmed, as
well as the public interest, and may decide not to
grant such measures where their negative consequences could exceed their
benefits. A decision not to grant interim measures shall not prejudice
any other claim of the person seeking these measures.
5. The Member States may provide that where damages are claimed on the
grounds that a decision was taken unlawfully, the contested decision must
first be set aside by a body having the necessary powers.
6. The effects of the exercise of the powers referred to in paragraph
1 on a contract concluded subsequent to its award shall be determined
by national law.
Furthermore, except where a decision must be set aside prior to the award
of damages, a Member State may provide that, after the conclusion of a
contract following its award, the powers of the body responsible for the
review procedures shall be limited to awarding damages to any person harmed
by an infringement.
7. The Member States shall ensure that decisions taken by bodies responsible
for review procedures can be effectively enforced.
8. Where bodies responsible for review procedures are not judicial in
character, written reasons for their decisions shall always be given.
Furthermore, in such a case, provision must be made to guarantee procedures
whereby any allegedly illegal measure taken by the review body or any
alleged defect in the exercise of the powers conferred on it can be the
subject of judicial review or review by another body which is a court
or tribunal within the meaning of Article 177 of the EEC Treaty and independent
of both the contracting authority and the review body.
The members of such an independent body shall be appointed and leave office
under the same conditions as members of the judiciary as regards the authority
responsible for their appointment, their period of office, and their removal.
At least the President of this independent body shall have the same legal
and professional qualifications as members of the judiciary. The independent
body shall take its decisions following a procedure in which both sides
are heard, and these decisions shall, by means determined by each Member
State, be legally binding.
Article 3
1. The Commission may invoke the procedure for which this Article provides
when, prior to a contract being concluded, it considers that a clear and
manifest infringement of Community provisions in the field of public procurement
has been committed during a contract award procedure falling within the
scope of Directives 71/305/EEC and 77/62/EEC.
2. The Commission shall notify the Member State and the contracting authority
concerned of the reasons which have led it to conclude that a clear and
manifest infringement has been committed and request its correction.
3. Within 21 days of receipt of the notification referred to in paragraph
2, the Member State concerned shall communicate to the Commission:
(a) its confirmation that the infringement has been corrected; or
(b) a reasoned submission as to why no correction has been made; or
(c) a notice to the effect that the contract award procedure has been
suspended either by the contracting authority on its own initiative or
on the basis of the powers specified in Article 2 (1) (a).
4. A reasoned submission in accordance with paragraph 3 (b) may rely among
other matters on the fact that the alleged infringement is already the
subject of judicial or other review proceedings or of a review as referred
to in Article 2 (8). In such a case, the Member State shall inform the
Commission of the result of those proceedings as soon as it becomes known.
5. Where notice has been given that a contract award procedure has been
suspended in accordance with paragraph 3 (c), the Member State shall notify
the Commission when the suspension is lifted or another contract procedure
relating in whole or in part to the same subject matter is begun. That
notification shall confirm that the alleged infringement has been corrected
or include a reasoned submission as to why no correction has been made.
Article 4
1. Not later than four years after the implementation of this Directive,
the Commission, in consultation with the
Advisory Committee for Public Contracts, shall review the manner in which
the provisions of this Directive have been implemented and, if necessary,
make proposals for amendments.
2. By 1 March each year the Member States shall communicate to the Commission
information on the operation of their national review procedures during
the preceding calendar year. The nature of the information shall be determined
by the Commission in consultation with the Advisory Committee for Public
Contracts.
Article 5
Member States shall bring into force, before 1 December 1991, the measures
necessary to comply with this Directive. They shall communicate to the
Commission the texts of the main national laws, regulations and administrative
provisions which they adopt in the field governed by this Directive.
Article 6
This Directive is addressed to the Member States.
Done at Brussels, 21 December 1989.
For the Council
The President
É. CRESSON
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