dr Aleksandra Sołtysińska

Article 19 TEU obliges Member States to „provide remedies sufficient to ensureeffective legal protection in the fields coveredby Union law”.

Article 47 of the Charter of FundamentalRights of the EU guarantees the right to aneffective remedy before a tribunal to everyonewhose rights and freedoms guaranteed by the law of the Union are violated.

Council Directive 89/665/EEC of 21December 1989,

Council Directive 92/13/EEC of 25 February1992,

Directive 2007/66/EC of the EuropeanParliament and of the Council of 11December 2007 amending Council Directives89/665/EEC and 92/13/EEC with regard toimproving the effectiveness of reviewprocedures concerning the award of publiccontracts

interim measures with the aim of correctingthe alleged infringement or preventingfurther damage to the interests concerned

set aside of decisions taken unlawfully

damages to persons harmed by aninfringement

ineffectiveness of a contract

Memeber States may provide that where damagesare claimed on the grounds that a decision was taken unlawfully, the contested decision mustfirst be set aside by a body having the necessarypowers.

Member States may provide that, after the conclusion of a contract in accordance with Article 1 (5), Article 2 (3) or 2a to 2f of Directive 89/665/EEC, the powers of the body responsiblefor review procedures shall be limited to awarding damages to any person harmed by aninfringement.

Directive 89/665/EEC contains no detailedstatement either as to the conditions underwhich an awarding authority may be heldliable or as to the determination of the amount of the damages.

The principle of State liability for loss and damage caused to individuals as a result of breach of EU law for which the State can be held responsible is inherent in the legal order of the EU – C-6/90 and 9/90, Francovich and Others.

Individuals have a right to reparation wherethree conditions are met:

1) the rule of EU law infringed must be intended to confer rights on them,

2) the breach of that rule must be sufficientlyserious,

3) There must be a direct causal link betweenthe breach and the loss or damagesustained by the individuals.

In the absence of EU provisions in that area, itis for the legal order of each Member State to determine the criteria on the basis of whichdamage arising from an infringement of EU law on the award of public contracts must be determined and estimated, provided the principles of equivalence and effectivenessare complied with.

The detailed procedural rules governingactions for safeguarding an individual’s rightsunder EU law must be no less favorable thanthose governing similar domestic actions.

The procedural rules must not renderpractically impossible or excessively difficultthe exercise of rights conferred by EU law.

National regulations, which makes the award of damages to individuals subject to the furnishing of proof of fault or fraud on the part of the Portuguese State or public entities concerned, do not render it impossible for individuals to bring judicial actions but render those actions more difficult and costly, so impairing the full effectiveness of the EU public procurement policy.

Directive 89/665/EEC must be interpreted as precluding national legislation which makes the right to damages for an infringement of public procurement law by a contracting authority conditional on that infringement being culpable, including where the application of that legislationrests on a presumption that the contractingauthority is at fault and on the fact that the lattercannot rely on a lack of individual abilities, henceon the defence that it cannot be held accountablefor the alleged infringement.

The period for bringing proceedings seekingto have an infringement of the public procurement rules established or to obtaindamages for the infringement of those rulessholud start to run from the date on whichthe claimant knew, or ought to have known, of that infringement.

Directive 89/665/EEC precludes a nationalprovision, which allows a national court to dismiss, as being out of time, proceedingsseeking to obtain damages, on the basis of the criterion, appraised in a descretionarymanner, that such proceedings must be brought promptly.

The consequnces of a contract beingconsidered ineffective shall be provided for by national law.

National law may:

a) provide for the retroactive cancellation of allcontractual obligations, or

b) limit the scope of the cancellation to thoseobligations which still have to be performedand provide for the application of otherpenalties.

If the contracting authority has awarded a contract without prior publication of a contract notice in the OJEU without this beingpermissible in accordance with Directives.

the contracting authority considers that the adward of a contract without prior publication of a contract notice in the OJEU is permissible

the contracting authority has published in the OJEU a notice expressing its intenetion to conclude the contract

the contract has not been concluded before the expiry of a period of at least 10 calendar dayswith effect from the day following the date of publication of this notice

Where a public contract is awarded withoutprior publication of a contract notice in the OJEU, but that was not permissible underDirective 2004/18/EC, the contact may not be declared ineffective if the conditions laiddown in Article 2d (4) of Directive 89/665 arein fact satisfied, which it is for the referringcourt to determine.

In case of an infringement of regulations on standstill period, if this infringement:

a) has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies, and

b) is combined with an infringement of Directives, which has affected the chancesof the tenderer applying for a review to obtain the contract.

The review body may not consider a contractineffective if it finds, after having examinedall relevant aspects, that overriding reasonsrelating to a general interest require that the effects of the contract should be maintained.

In this case, alternative penalties shall be applied instead.

Economic interests in the effectiveness of the contract may only be considered as overriding reasons if in exceptionalcircumstances ineffectiveness would lead to disproportionate consequences.

Economic interests directly linked to the contract concerned shall not constituteoverriding reasons relating to a generalinterest.

The review procedures are available, underdetailed rules which Member States mayestablish, at least to any person having orhaving had an interest in obtaining aparticular contract and who has been risksbeing harmed by an alleged infringement.

The possibility of review is available from the time when the contracting authority hasexpressed its will in a manner capable of producing legal effects.

The possibility of review does not depends on the fact that the public procurementprocedure has formally reached a particularstage.

A consortium may be considered to be a person having an interest in obtaining a public contract.

Directive 89/665/EEC does not preclude the national law form providing that only the members of a consortium without legalpersonality which has participated, as such, in procedure for the award of a public contract, acting together, may bring an actionagainst the decision awarding the contract.

Directive 89/665/EEC is to be interpreted as not precluding the possibility, under nationallaw, for an individual member of a consortium without legal personality whichhas participated as such in a procedure for the award of a public contract to bring anaction against the decision awarding thatcontract.