The EU public procurement remedies directive needs some revision, and the Commission should not shy away from it

By Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).

my-performance-reviewEU public procurement law relies on the specific enforcement mechanisms of the Remedies Directive, which sets out EU requirements of administrative oversight and judicial protection for public contracts. Recent developments in the case law of the CJEU and the substantive reform resulting from the 2014 Public Procurement Package may have created gaps in the Remedies Directive, which led the European Commission to publicly consult on its revision in 2015. One year after, the outcome of the consultation has not been published, but such revision now seems to have been shelved. In a chapter* I am contributing to an edited collection, I take issue with the shelving of the revision process and critically assesses whether the Remedies Directive is still fit for purpose.

In order to carry out that assessment, the chapter focuses on selected issues, such as the interplay between the Remedies Directive and the Charter of Fundamental Rights (CFR), and with the general administrative law of the Member States. It also assesses the difficulties of applying the Remedies Directive ‘as is’ to some of the new rules of the 2014 Public Procurement Package, which creates uncertainty as to its scope of application, and gives rise to particular challenges for the review of exclusion decisions involving the exercise of discretion. The chapter also raises some issues concerning the difficulties derived from the lack of coordination of different remedies available under the Remedies Directive and briefly considers the need to take the development of ADR mechanisms into account. After addressing each of those issues in detail, I reach the following conclusions:

  1. There is a large number of enforcement issues in the area of EU public procurement law that require specific solutions by means of a revision of the Remedies Directive. The CFR is applicable to domestic administrative oversight and judicial protection for public contracts. Even if this does not require a major overhaul of the remedies system due to the inroads already made by the Remedies Directive and the EU substantive public procurement rules towards ensuring good administration subject to judicial review, it does result in the need to strengthen procedural rights such as the right to access the file and to be heard before a negative decision is adopted in several areas of EU public procurement activity, mainly at a pre-contentious stage. This ultimately raises the procedural requirements applicable to the review of decisions involving administrative discretion, particularly in the case of application of unfavourable general administrative rules, or concerning decisions of exclusion of economic operators or the rejection of their tenders.
  2. The substantive reforms brought by the 2014 Public Procurement Package have triggered the need to clarify the scope of application of the Remedies Directive. This is particularly clear in view of the incipient case law of the CJEU on the interpretation of the novel concept of procurement and the implications it can have in terms of coverage of the substantive EU public procurement Directives, which in turn impacts on the scope of coverage of the Remedies Directive. There is thus a need to revise the coordination in the scope of application of both sets of rules, which may be diverging rather than converging. The need for an aggiornamento of the Remedies Directive is also particularly clear concerning contractual matters now included in the scope of the substantive EU public procurement Directives, such as contract modification and contract termination, which can in turn also justify the consideration of the introduction of rules concerning ADR mechanisms and their interaction with the remedies currently foreseen in the Remedies Directive.
  3. There is a need to establish clearer rules for the coordination of the remedies already available under the Remedies Directive, in particular to determine if damages are to be considered as a residual remedy in preference for procedure-specific measures. There is also a potential need for the introduction of restrictions concerning claims for damages, e.g. in order to ensure the effectiveness of novel rules that aim to increase the level of integrity and probity of public procurement procedures in the EU.

Overall, I submit that, even if only in a non-exhaustive manner, the chapter shows that there are important areas where the Remedies Directive requires a revision. Most of these areas either derive from the need to establish a clear position where several options are available—thus avoiding the uncertainty of unclear or contradictory case law of the CJEU—or imply important and complex normative assessments that are better suited for legislative action rather than judicial adjudication. Thus, de lege ferenda, my view is that the European Commission should relaunch the process for the review of the Remedies Directive as a matter of high priority. Given that only a year has elapsed since it launched the public consultation on the revision of the Remedies Directive, this still seems timely and the process could probably be simply reinvigorated. For one, I would very much welcome such an initiative.

* A Sanchez-Graells, ‘If it Ain’t Broke, Don’t Fix It’? EU Requirements of Administrative Oversight and Judicial Protection for Public Contracts, to be published in S Torricelli & F Folliot Lalliot (eds), Administrative oversight and judicial protection for public contracts (Larcier, 2017) forthc.

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