The Government Procurement Review: European Union
EU procurement law is set out in four principal directives, namely the 2014 Public Contracts Directive, the 2014 Utilities Contracts Directive, the 2014 Concession Contracts Directive (together the 2014 Procurement Directives) and the 2009 Defence and Security Procurement Directive.2 Additionally, rules on remedies for breach of these four principal directives are set out, in respect of the 2014 Procurement Directives, in the Public Sector Remedies Directive and the Utilities Remedies Directive3 and, for defence, are written into the Defence and Security Procurement Directive itself. In this chapter, 'the Directives' means all six of these procurement directives.
Overriding principles of EU law, referred to as the 'EU Treaty principles', have been developed by the Court of Justice of the European Union (CJEU) on the basis of freedoms in the EU Treaties. These principles include free movement of goods and services within the EU, freedom of establishment, non-discrimination on grounds of nationality, equal treatment, transparency, proportionality (i.e., fairness) and mutual recognition.
In cases before the CJEU, the Court may decide that an official opinion from the Advocate General (AG) is necessary before the judges deliberate and give their verdict. The AG's opinion is published and provides guidance on the law.
As with all EU Directives, the Directives require Member States to adopt national legislation transposing them into national law. Nevertheless, the national courts must interpret the relevant national legislation insofar as it is possible in accordance with the Directives.6 If national rules do not properly implement the Directives, then certain provisions of the Directives may be relied upon directly against the state.7
The EU is a signatory to the Agreement on Government Procurement (GPA) adopted under the auspices of the World Trade Organization. As such, economic operators from GPA states benefit from most of the provisions set out in the Directives (and, therefore, national laws derived from them).8
Additionally, the EU has entered into various free trade agreements, so economic operators from certain other countries also benefit from the Directives.
The European Commission is the 'guardian of the Treaties'. As such, it adopts guidance on procurement law (often by way of non-binding communications or notices). It initiates changes to the Directives. It can also take enforcement action against Member States that are in breach of the Directives or Treaty principles.9
Rules similar to the Directives apply to purchasing by the institutions of the EU such as the Commission, the Council and the CJEU. This chapter does not further consider those special rules.
Year in review
The CJEU has used the past year to sharpen the contours of sub-areas of public procurement law and to clarify a number of open questions.
Public contracts between entities within the public sector have certainly been a dominant topic throughout the year. Quite early in the year, the Court addressed the question whether the Member States may further regulate the possibilities for 'in-house' procurement in national law. In this respect, it held that the Member States may make the conclusion of an in-house contract, subject to the conditions (1) that no competitive public procurement is possible, and (2) that the contracting authority demonstrates the specific advantages of the use of the in-house contract. Moreover, according to the CJEU, the Member States under certain conditions may prevent a contracting authority from acquiring shares of an entity held by other contracting authorities. In this context, the CJEU has stressed the general freedom of the Member States to favour one means of providing services, performing work or obtaining supplies over another. That freedom implies a choice at a stage prior to that of the procurement that cannot, therefore, fall within the scope of the Directives.10
In a judgment of 28 May 2020, the CJEU dealt with a contract between two contracting authorities according to which one authority transferred software to the other free of charge. The contract was linked to a cooperation agreement under which each party was required to make available to the other party any further developments of the software it might create. The Court qualified the contractual framework formed by the two contracts as a public contract within the meaning of public procurement law. On this basis, the CJEU examined whether the public–public cooperation exemption in Article 12(4) of the 2014 Public Contracts Directive can apply to activities ancillary to the public services that are to be provided by each partner of the cooperation. The Court affirmed that it can and, in doing so, clarified a widespread uncertainty. Finally, the CJEU made clear that a cooperation in the above sense must not have the effect of placing a private undertaking in a position of advantage in relation to its competitors.11
The CJEU further elaborated on the concept of public–public cooperation in Article 12(4) of the 2014 Public Contracts Directive in another judgment, which was handed down only a few days later. It stressed that the cooperation has to be based on a strategy that is common to the partners in that cooperation and requires the contracting authorities to combine their efforts to provide public services. Public–public cooperation is, in general, not established where a contracting authority that is responsible for a task in the public interest commissions another contracting authority to carry out parts of the required activities in return for remuneration.12
The Court's judgment of 18 June 2020 also concerned a special form of public–public cooperation. In continuation of CJEU case law established a few years ago, it clarified that an agreement under which several municipalities entrust to one of their number responsibility for organising services for their benefit may not be considered a public contract. Rather it constitutes a transfer of powers that does not fall within the scope of the Directives. A transfer of powers requires that the public authority on which competence has been conferred (1) has the power to organise the performance of the respective tasks and to draw up the regulatory framework relating to those tasks, and (2) has the financial autonomy allowing it to ensure the financing of those tasks. A transfer of powers implies that the newly competent public authority acts autonomously and under its own responsibility in the performance of its tasks. Based on this, the CJEU held that the public authority on which competence has been conferred may, without a prior call for competitive tendering, award contracts to an in-house entity. This also applies if the services in question not only fulfil its own needs but also those of the authorities that have transferred their powers.13
The CJEU has not been entirely taken up with issues relating to contracts between entities within the public sector in the past year. In its judgment of 28 October 2020, it provided some clarification on the scope of the tendering obligations under the 2014 Utilities Contracts Directive. The underlying case concerned the procurement of caretaking, reception and access control services by a postal services provider. The CJEU took a rather broad approach. It concluded that the procurement of those services falls within the scope of the 2014 Utilities Contracts Directive if they are connected to activities in the postal sector, in the sense that the services serve to carry out the postal activity by enabling it to be carried out adequately.14
In another decision, the Court addressed the highly important issue of 'self-cleaning'. The reference point of the decision was the grounds for exclusion in Article 38(4) of the 2014 Concession Contracts Directive. The Court held that national legislation is not compatible with EU public procurement law it if does not allow an economic operator convicted of one of the offences referred to in Article 38(4) of the Directive to self-clean. Moreover, it held that the Member States may entrust the domestic courts with the assessment of the compliance measures taken by an economic operator, provided that (1) the national rules put in place for that purpose satisfy all the requirements laid down in Article 38(9) of Directive, and (2) the relevant procedure is compatible with the applicable time limits.15
The CJEU, moreover, has addressed a couple of questions that arise again and again in practice. It has clarified that national legislation is not compatible with EU law if it prevents non-profit-making entities from taking part in public procurement proceedings even though, under national law, those entities are entitled to offer the services in question on the market.16 In another ruling, the Court, once again, looked at the concept of 'public contract' and, in particular, the aspect of a pecuniary interest. It held that Article 2(1)(5) of the 2014 Public Contracts Directive does not constitute a legal basis for rejecting a tender on the sole grounds that the price proposed in the tender was €0.17
Addressing one of the dominant topics of 2020 and, most probably, 2021, on 1 April 2020 the Commission issued guidance on using the public procurement framework in the emergency situation related to the covid-19 crisis. The guidance is intended to help public authorities use the flexibility provided by the EU's public procurement framework to ensure rapid and efficient purchases of all necessary equipment.18 In November 2020, the Council adopted a set of conclusions centred on how efficient public procurement rules and practices, combined with increased public spending, can accelerate the economic recovery from the covid-19 crisis and lead to a sustainable and more resilient EU economy.19 In these conclusions, the Council calls on authorities to coordinate closely their actions for achieving the following objectives: enhancing efficiency of public procurement to boost recovery and to tackle future crises; setting the right incentives for innovative and sustainable investment and growth in the EU through public procurement; contributing through public procurement to a more resilient EU economy.
In January 2021, following the conclusion of the Trade and Cooperation Agreement with the United Kingdom (TCA), the Commission published a Notice to Stakeholders dealing with the consequences of Brexit in the field of public procurement.20 The Notice describes the current and future status of economic operators from the UK and outlines the applicable law. In doing so, it distinguishes between procurements that are covered by the GPA and the TCA and those that are not. Finally, the Notice discusses the situation regarding public procurement procedures that were ongoing as at 31 December 2020. Further information on the TCA is contained in the UK chapter of this book.
In mid-2020, the Commission adopted a White Paper dealing with the distortive effects caused by foreign subsidies in the Single Market.21 One important aspect the White Paper deals with is distortions in the EU public procurement markets. The Commission carried out a public consultation on the back of the White Paper and this ended in September 2020.
Finally, the EU institutions have issued several major studies, such as the Analysis of SMEs' participation in public procurement and the measures to support it and the Compendium of Large Infrastructure Projects, both published by the Commission.
Scope of procurement regulation
i Regulated authorities
The Directives regulate most public sector entities as well as a significant number of privately owned utility companies. For convenience, we refer to all such entities as 'authorities'.
The 2014 Public Contracts Directive applies to most public law bodies, including 'bodies governed by public law': that have a separate legal personality; are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; and are more than 50 per cent funded, managed or controlled by other public sector authorities.22
Private operators may, in limited circumstances, have to procure in accordance with the 2014 Public Contracts Directive; for example, where they award certain works contracts that are more than 50 per cent subsidised by authorities,23 in which case the authorities are obliged to secure compliance.
The 2014 Utilities Contracts Directive applies to contracts for utility activities awarded by the following entities (when pursuing a utility activity): contracting authorities regulated by the 2014 Public Contracts Directive, undertakings subject to control by those authorities (public undertakings) and entities operating in a relevant utility sector on the basis of special or exclusive rights.24
Where a utilities market is directly exposed to competition and access to the market is not restricted, Member States may apply to the Commission for a derogation from the 2014 Utilities Contracts Directive for contracts in pursuit of activities in that market.25 Derogations have been granted to a number of Member States in respect of, for example, postal services, electricity, and oil and gas.
The 2014 Concession Contracts Directive applies to the award of works and services concessions by contracting authorities that are caught by the 2014 Public Contracts Directive and the entities caught by the 2014 Utilities Contracts Directive (when pursuing a utility activity).26 A contract becomes a concession where the consideration includes the right to exploit works or services and the operating risk (demand, supply or both) in such exploitation is transferred to the concessionaire.27
The Defence and Security Procurement Directive applies to defence and security contracts awarded by authorities governed by the 2014 Public Contracts Directive and the entities covered by the 2014 Utilities Contracts Directive.
ii Regulated contracts
Generally, contracts for construction of works, supply of goods and provision of services, and services and works concessions, awarded by authorities are subject to the Directives if they meet28 the specified minimum financial thresholds:
|Goods and services contracts, design contests||2014 Public Contracts Directive||€139,000 (central government authorities listed in Annex I) or €214,000 (all other authorities)|
|Goods and services contracts, design contests||2014 Utilities Contracts Directive||€428,000|
|Goods and services contracts||Defence and Security Procurement Directive||€428,000|
|Social and other specific services contracts||2014 Public Contracts Directive||€750,000|
|Social and other specific services contracts||2014 Utilities Contracts Directive||€1 million|
|Works contracts||2014 Public Contracts Directive,|
2014 Utilities Contracts Directive and Defence and Security Procurement Directive
|Services and works concession contracts||2014 Concession Contracts Directive||€5.35 million|
Anti-avoidance rules prevent artificial splitting of contracts to bypass the Directives.29
Contracts for certain social and other specific services are regulated to a limited 'light touch' extent.30 In particular, there is no obligation to follow one of the specified procedures, although one of the principal changes from the predecessor directives is that, above the thresholds, advertising and competition is required. These services include health, social, educational, social security and community services. Any service that is not expressly listed as being subject to the 'light touch' regime is fully regulated.
Some types of contract are not regulated by the Directives, such as contracts for:
- the acquisition or rental of land;31
- certain research and development services;33 and
- certain financial services.34
There have been a number of CJEU cases deciding whether a transaction was properly classified as an (unregulated) land agreement or a (regulated) works contract.35 Often, the distinction turns on whether the economic operator is obliged to undertake the works36 or whether, while the parties envisage certain works being carried out, the economic operator is at liberty to construct something different or to leave the land undeveloped.
In some exceptional cases, authorities may negotiate contracts with economic operators without prior advertisement,37 for example, in the case of extreme urgency following a failed procurement process or where, for technical reasons, the contract may be awarded only to a particular economic operator. These exceptions are narrowly construed.
Where a public contract is substantially modified, this may amount to a completely new contract, which the authority must competitively tender under the Directives.38
Where the Directives do not apply, some form of advertisement is generally required if there is certain cross-border interest in the resulting contract.39
The 2014 Utilities Contracts Directive applies to the regulated activities listed in Articles 8 to 14 in the fields of gas, heat and electricity, water, transport, post, exploration for or extraction of coal and other solid fuels, and extraction of (but not exploration for) oil and gas (although the 2014 Concession Contracts Directive applies to the award of works and services concession contracts for those regulated activities). This extends to the procurement of services connected to a utility activity that facilitate the effective performance of that activity.40 A utility's other activities are unregulated unless the utility is also a contracting authority for the purposes of the 2014 Public Contracts Directive, in which case those other activities are subject to the procedures in that Directive.41
The Defence and Security Procurement Directive applies to contracts for the supply of military equipment, for works and services for military purposes and for the supply of equipment, works and services involving, requiring or containing classified information. Where the Defence and Security Procurement Directive applies, neither the 2014 Utilities Contracts Directive nor the 2014 Public Contracts Directive applies. Works and services concession contracts in these fields are covered by the 2014 Concession Contracts Directive. The most sensitive defence contracts may still be awarded outside the scope of the Defence and Security Procurement Directive.
Special contractual forms
i Framework agreements and central purchasing
The Directives permit (but do not require) Member States to adopt certain rules aimed at reducing the burden on entities when awarding contracts. These include permitting:
- framework agreements (the 2014 Public Contracts Directive, the 2014 Utilities Contracts Directive and the Defence and Security Procurement Directive);42
- purchasing through or from central purchasing bodies (the 2014 Public Contracts Directive; the Utilities Contracts Directive; and the Defence and Security Procurement Directive);43
- dynamic purchasing systems (DPS) (the 2014 Public Contracts Directive and the 2014 Utilities Contracts Directive);44 and
- qualification systems (the 2014 Utilities Contracts Directive).45
These concepts are generally not relevant to the award of works and services concessions, and are not dealt with explicitly in the 2014 Concession Contracts Directive.
Authorities must not use framework agreements or DPS improperly to prevent, restrict or distort competition. Framework agreements may not generally last longer than four years (public sector), seven years (defence) or eight years (utilities).
Framework agreements may be concluded with a single supplier or with multiple suppliers. When calling off from a multi-supplier framework, the authority either runs a 'mini-competition' to award each call-off contract or awards a call-off contract directly based on the terms of the framework agreement.
Central purchasing bodies must be contracting authorities as defined by the 2014 Public Contracts Directive.
ii Joint ventures
In principle, the Directives do not apply to the setting up of a joint venture by one or more authorities (whether public–public or public–private), but they are relevant to any subsequent supply of goods, works or services by the joint venture to the authority or authorities (or to other authorities).
A Commission Interpretative Communication46 on institutionalised public–private partnerships recommends that authorities should simultaneously advertise the selection of the joint venture partner and the award of a contract to the joint venture.
Contracts between authorities are in principle subject to the Directives. There are certain exceptions, although these all prohibit private participation or shareholdings.47
The 2014 Utilities Contracts Directive has separate rules on joint ventures between utilities and on intra-group supplies.48
The bidding process
Most procurement processes are formally commenced by publication of a contract notice.
All official notices under the Directives, such as prior information notices, contract notices and contract award notices, must be submitted electronically for publication in the Official Journal of the European Union (OJEU), which is accessible free of charge at Tenders Electronic Daily (TED).49
The Directives envisage various contract award procedures:
- open procedure: a one-stage process where bidders must show their good standing and their tender proposals in a single bidding round;50
- restricted procedure: a two-stage process where, based on financial standing, qualification and past experience, at least five bidders are shortlisted to tender;51
- competitive dialogue procedure: a process generally used for complex procurements where the authority knows only the output that it requires and has not yet identified a solution;52
- competitive procedure with negotiation53 or negotiated procedure with advertisement:54 a process generally used for procurements where the authority knows both the output and the likely solution but wishes to negotiate the terms with bidders;
- innovation partnership for the development of innovative products;55 and
- exceptionally, negotiated procedure without advertisement.56
For the procurement of social and other specific services under the 'light touch' regime, and where the 2014 Concession Contracts Directive applies, no procedure is specified.
There are minimum timescales for key stages in most procedures, particularly as regards the minimum period between the contract notice and bidders' initial expressions of interest. These periods may be shortened in some specified cases and vary depending on the procedure adopted and which Directive applies.57
iii Amending bids
Once bids have been submitted, equal treatment and fairness significantly limit the scope for bid amendments.
Authorities may in certain cases seek clarification or allow bidders to correct obvious errors.58 However, in the case of bids in the open procedure or restricted procedure, or final tenders in the competitive procedure with negotiation or negotiated procedure with advertisement, this does not allow negotiation or the submission of what should be viewed as a new tender.
The competitive dialogue procedure is slightly more flexible: the authority may, before tender evaluation, request that bids be clarified, specified and optimised. However, this must not involve changes to the essential aspects of the tender or the procedure that are likely to distort competition or have a discriminatory effect.59 After selection of the winning bid, negotiations are permitted to confirm aspects of the tender and finalise the contract terms, provided the essential aspects are not materially modified and, again, that there is no risk of distortion or discrimination.60
i Qualification to bid
Authorities may reject bidders at the selection stage where they do not meet certain objectively evaluated minimum standards. They may also restrict the number of bidders invited to the next stage of competition under restricted, competitive dialogue, competitive with negotiation and negotiated procedures. These standards may relate to the bidder's:
- personal standing (e.g., whether the bidder has been declared insolvent or convicted of money laundering or corruption offences);61
- enrolment on a professional or trade register as required in the bidder's state of establishment;62
- financial standing;63 and
- technical and professional ability.64
A bidder may rely upon the technical and professional ability or financial standing of other entities, which could include other members of a bidding consortium or nominated subcontractors.65
ii Conflicts of interest
The 2014 Procurement Directives contain express provisions on conflicts of interest. Authorities must investigate possible conflicts of interest where a member of the authority's award panel is connected with a bidder, although they have some discretion as to how to deal with such conflicts.66 Although the Defence and Security Procurement Directive does not contain an express provision, the obligation of non-discrimination imposes the same requirements in respect of procurements conducted under it.67
Where an economic operator was involved in design work before the start of the award process and then wishes to bid for the contract, it could have a knowledge advantage from having prepared the designs and it could, even without intending to, have influenced the design of the specification or procurement process in such a way as to favour itself. Authorities must consider these issues case by case and permit the economic operator the opportunity to explain why there is no conflict of interest in a given case;68 a blanket ban on involvement of those with prior knowledge has been held to be disproportionate and in breach of the equal treatment principle.69
iii Foreign suppliers
The Directives do not prohibit non-EU suppliers from bidding for public contracts. The GPA requires providers from GPA states70 to be given the same treatment as is afforded to national providers. Certain types of contracts are outside the GPA, including contracts for health services and defence contracts. Except for central government procurement, which is open to all GPA businesses, other procurements are only open to the extent that the bidder's home state allows EU undertakings access to government procurement.
Special rules apply to utilities for the supply of goods (but not works or services). Where more than half the products (including software in telecommunications network equipment) in a bid are from third countries with which the EU does not have reciprocal agreements and the bid is equivalent in price and quality to an EU bid, then the utility must favour the bid comprising EU products.71
EU rules do not currently prevent non-EU access to public procurement, but restrictions may occur at Member State level. In practice, third-country businesses may be able to overcome any protectionist national rules if they bid through a subsidiary established within the EU.
i Evaluating tenders
Authorities may assess bids on the basis of price or cost alone, taking a cost-effectiveness approach, or the best price–quality ratio to determine which is the most economically advantageous tender.
Authorities must disclose, before receiving bids, the criteria that they will use for bid evaluation and the weightings of the criteria chosen.72 In general, the criteria and weightings should not be changed during the process.
The authority must, if a tender appears to be abnormally low, request explanations from the bidder and may then reject the abnormally low tender.73
ii National interest and public policy considerations
Authorities must act in a non-discriminatory manner; therefore, any 'buy local' policy is unlawful.
Indirect means of discrimination are also prohibited. For example, if the specification is written in a particular way to favour national suppliers, this infringes the requirement of non-discrimination. Accordingly, an authority should normally use a national technical specification transposing European standards; it can only use other national standards if there is no European standard.74
The procurement may take account of social or environmental considerations, but this must be non-discriminatory and proportionate to the objectives being pursued.75 Any requirements must be relevant to the contract.76
There are limited 'national interest' exceptions in the Directives. For example, the Defence and Security Procurement Directive does not apply to contracts for the purpose of intelligence activities or that would oblige the Member State to supply information contrary to the essential interests of its security.77 These exceptions are narrowly construed.
As a result of the principle of transparency, during the procurement process authorities must ensure that they give sufficient information to bidders to enable them properly to understand the authority's requirements and to ensure a level playing field. They must also disclose the award criteria that they will use to mark bids.
Under the Directives, authorities are required to notify bidders of decisions and supply certain information. When they make an award decision, they must then 'stand still' for a minimum of 10 calendar days before signing the contract.78 This period allows unsuccessful bidders time to bring a legal challenge to prevent contract signing if they consider that the award decision is unlawful. Notices of award decisions to bidders must include scores and a narrative summary of the characteristics and relative advantages of the winning bid.
Challenges to procurement decisions may be brought in the national courts. The cost, complexity and duration of these processes vary considerably from Member State to Member State.
Rules governing challenges under the 2014 Procurement Directives are dealt with in the Public Sector Remedies Directive and the Utilities Remedies Directive, with those governing defence in the Defence and Security Procurement Directive itself. The Commission has reviewed the operation of these directives and has concluded that they are generally working well, so they will be maintained in their present form without further change at this stage.79 In this section, the general provisions common to all are considered and referred to as the 'Remedies Provisions', but references to article numbers are to articles of the Public Sector Remedies Directive.
Member States must ensure that decisions taken by authorities 'may be reviewed effectively',80 and 'as rapidly as possible', in accordance with the Remedies Provisions.81 'Decisions' are construed broadly and can include a decision to admit a bidder.82 Member States may decide who is to carry out such reviews (the review body). The nature of review bodies varies considerably between Member States and no bidder should assume that the relevant review body will be the national court. Member States may require that a bidder first seek review with the authority or that a bidder be required to notify the authority of its intention to seek review.
The review body must be independent of the authority and the Member State must provide that its decisions can be effectively enforced. If the review body is not the national court, then written reasons for the decision of the review body must be given and there must be a further right of review by a court that is independent of both the review body and the contracting authority.
The review procedures must be available as a minimum to any person 'having or having had an interest in obtaining a particular contract' (i.e., to bidders themselves) who can show that he or she has been or risks being harmed by an alleged infringement. This leaves scope for interpretation of what a risk of being harmed might mean; for example, must the bidder show that, but for the breach, it would have good prospects of being awarded the contract or merely that it would have had a more than minimal prospect of being awarded the contract? The CJEU has clarified that a bidder who has been definitively excluded from a procedure by an authority (for failure to provide original documentation pertaining to financial standing) can be refused access to a review of the award decision in that procedure.83 However, it is not necessary for a bidder to prove that the procurement would have had to be re-run.84
It is for the Member State to decide on the relevant limitation period within which any application for review must be made. However, the right to bring a challenge must remain open after the deadline, where a reasonably well informed and diligent bidder would only have understood the tender conditions after the authority had explained its decision.85 Member States may set a limitation period for claiming the remedy of ineffectiveness of at least 30 days from publication of a contract award notice and at least six months from the contract being concluded.
Review procedures adopted by individual Member States have been challenged on occasion. This has led the CJEU to consider areas such as court fees, limitation periods and the availability of remedies.
If the Commission considers that a serious infringement of Community law has been committed during a contract award procedure, it will notify the Member State, giving reasons, prior to a contract being concluded.86 The Member State must then either correct the infringement, give a reasoned submission as to why no correction has been made or suspend the contract award procedure pending a decision as to whether to correct.
ii Grounds for challenge
The Remedies Provisions say little about the grounds for challenge by bidders, providing simply that infringements of 'Community law in the field of public procurement or national rules transposing that law'87 can be challenged. This covers breaches of both national rules implementing the Directives and Treaty principles, such as equality, non-discrimination and transparency.
The number of challenges and prospects of success vary considerably from state to state.88
As noted above, the Commission may invoke a corrective mechanism when it 'considers that a serious infringement of Community law in the field of public procurement has been committed during a contract award procedure'.89
There are four main types of remedies that must be available to the review body under the review procedures. The first three are:
- interim suspension of the award of the contract pending review by the first instance review body, which must continue at least for the standstill period; the review body's decision as to whether to uphold this interim suspension can take into account the consequences of the continued suspension for all interests likely to be affected, as well as any public interest;
- set aside of an unlawful decision; this includes the power to amend the invitation to tender, the contract documents and other documents relating to the contract award procedure, to stop the procurement and to order a new procurement; and
- the power to award damages (compensation) to a person harmed by the infringement.90
The fourth and arguably most powerful remedy is that of ineffectiveness. Ineffectiveness must be available in three situations:
- if an authority has illegally awarded a contract without prior publication of a contract notice;
- if an authority has awarded a contract in breach of the standstill period or suspension of contract award and a bidder has thereby been deprived of the possibility to complain about some other infringement that has affected the bidder's chance of obtaining the contract; and
- where a Member State has permitted award of contracts without a standstill period under a framework or DPS.91
Where the ineffectiveness remedy is not available, Member States may provide that once the contract has been concluded the only remedy available is damages.
Member States can provide that the consequence of ineffectiveness is retroactive cancellation of all contractual obligations or may limit cancellation to future obligations only. If the latter option is chosen, the Member State must provide for the application of alternative penalties. If the general interest is in upholding the contract, so that the review body decides not to declare a contract ineffective, it must provide for alternative penalties.
Alternative penalties have to be effective, proportionate and dissuasive, and must be either the imposition of a fine on the authority or shortening of the duration of the contract.
It certainly is not a bold prediction that covid-19 will most probably remain one of the dominant issues in 2021. In particular, it will be interesting to see whether and how the pandemic will permanently change procurement policy and procurement law in the EU. It is not far-fetched to suggest that it will make the question of how procurement can contribute to the promotion of innovation even more important. Brexit is also likely to pose some challenges for public procurement in 2021, applying equally to contracting authorities, EU-based companies operating in the UK and UK-based companies that have previously had public clients within the EU.
It is already becoming apparent that public procurement law will again be an important topic for the CJEU in 2021. A number of cases are pending, including once again some 'long runners', on issues such as the concept of a public contract and the requirements for framework agreements.
1 Jan-Oliver Schrotz, Michael Rainey and Bill Gilliam are partners and Clare Dwyer is a legal director at Addleshaw Goddard LLP.
2 Directives 2014/24/EU, 2014/25/EU, 2014/23/EU and 2009/81/EC, respectively.
3 Directives 89/665/EEC (as amended by Directives 92/50/EEC and 2007/66/EC) and 92/13/EEC (as amended by Directives 2006/97/EC and 2007/66/EC), respectively.
4 Regulation (EC) No 1370/2007 (as amended by Regulation (EU) 2016/2338).
5 Directive 2009/33/EC (as amended by Directive (EU) 2019/1161).
6 C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA.
7 C-8/81 Becker v. Finanzamt Münster-Imenstadt.
8 With the exception of the Defence and Security Procurement Directive.
9 Articles 258 and 260 of the Treaty on the Functioning of the European Union and the Remedies Directives (e.g., Public Sector Remedies Directive, Article 3).
10 C-89/19 to C-91/19 Rieco SpA v. Comune die Lanciano et al.; see also C-11/19 Azienda ULSS v. Pia Opera Croce Verde Padova.
11 C-796/18 ISE mbH v. Stadt Köln.
12 C-429/19 Remondis GmbH v. Abfallzweckverband Rhein-Mosel-Eifel.
13 C-328/19 Porin kaupunki.
14 C-521/18 Pegaso Srl Service Fiduciari v. Poste Tutela SpA.
15 C-472/19 Vert Marine SAS v. Premier ministre.
16 C- 219/19 Parsec v. ANAC.
17 C-367/19 Tax-Fin-Lex d.o.o. v. Ministrstvo za notranje zadeve.
18 European Commission, Guidance from the European Commission on using the public procurement framework in the emergency situation related to the COVID-19 crisis, 2020/C 108 1/01 (1 April 2020).
19 Council of the European Union, Council Conclusions: Public Investment through Public Procurement: Sustainable Recovery and Reboosting of a Resilient EU Economy, 13352/20 (25 November 2020).
20 European Commission, Notice to Stakeholders: Withdrawal of the United Kingdom and EU rules in the field of public procurement (25 January 2021).
21 European Commission, White Paper on levelling the playing field as regards foreign subsidies, COM(2020) 253 final (17 June 2020).
22 Article 2(1)(4).
23 Article 13.
24 Article 4.
25 Article 34.
26 Article 1(2).
27 Article 5(1).
28 See Commission Delegated Regulation (EU) 2019/1828 amending Directive 2014/24/EU (2014 Public Contracts Directive), Commission Delegated Regulation (EU) 2019/1829 amending Directive 2014/25/EU (2014 Utilities Contracts Directive), Commission Delegated Regulation (EU) 2019/1827 amending Directive 2014/23/EU (2014 Concession Contracts Directive) and Commission Regulation (EU) 2019/1830 amending Directive 2009/81/EC (Defence and Security Procurement Directive).
29 For example, 2014 Public Contracts Directive, Article 5.
30 2014 Public Contracts Directive, Article 74 and Annex XIV, 2014 Utilities Contracts Directive, Article 91 and Annex XVII. Some (but not all) of these services are also subject to lighter regulation under the Defence and Security Procurement Directive, Article 16 and Annex II.
31 For example, 2014 Public Contracts Directive, Article 10(a).
32 For example, 2014 Public Contracts Directive, Article 10(g).
33 For example, 2014 Public Contracts Directive, Article 14.
34 For example, 2014 Public Contracts Directive, Article 10(e).
35 For example, C-220/05 Jean Auroux and others v. Commune de Roanne.
36 C-451/08 Helmut Müller GmbH v. Bundesanstalt für Immobilienaufgaben.
37 For example, 2014 Public Contracts Directive, Article 32.
38 C-454/06 pressetext Nachrichtenagentur GmbH v. Republic of Austria and others. The 2014 Procurement Directives codify and amplify the case law (e.g., the 2014 Public Contracts Directive, Article 72).
39 See C-324/98 Telaustria Verlags GmbH and another v. Telekom Austria AG, Commission interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives, OJEU 2006/C 179/02 (1 August 2006), and T-258/06 Germany v. Commission.
40 C-521/18 Pegaso Srl Service Fiduciari v. Poste Tutela SpA.
41 C-393/06 Ing Aigner, Wasser-Wärme-Umwelt GmbH v. Fernwärme Wien GmbH.
42 Respectively, Articles 33, 51 and 29.
43 Respectively, Articles 37, 55 and 10.
44 Respectively, Articles 52 and 34.
45 Article 77.
46 Commission interpretative communication on the application of Community law on Public Procurement and Concessions to Institutionalised PPP (IPPP), C (2007) 6661 (5 February 2008).
47 C-107/98 Teckal Srl v. Comune di Viano and another; C-324/07 Coditel Brabant SA v. Commune d'Uccle and another; Hamburg Waste (C-480/06 Commission v. Germany). This case law is codified and amplified under the 2014 Procurement Directives, e.g., 2014 Public Contracts Directive, Article 12.
48 Articles 29 and 30.
50 For example, 2014 Public Contracts Directive, Article 27.
51 For example, 2014 Public Contracts Directive, Article 28.
52 For example, 2014 Public Contracts Directive, Article 30.
53 2014 Public Contracts Directive, Article 29.
54 For example, 2014 Utilities Contracts Directive, Article 47.
55 For example, 2014 Public Contracts Directive, Article 31.
56 For example, 2014 Public Contracts Directive, Article 32.
57 For example, 2014 Public Contracts Directive, Articles 27 to 31 and 47.
58 2014 Public Contracts Directive, Article 56(3) and 2014 Utilities Contracts Directive, Article 76(4). While there is no explicit provision in the 2014 Concession Contracts Directive or in the Defence and Security Procurement Directive the same rules would be expected to apply under the Treaty principles to amendments during procedures governed by those Directives.
59 For example, 2014 Public Contracts Directive, Article 30(6).
60 For example, 2014 Public Contracts Directive, Article 30(7).
61 For example, 2014 Public Contracts Directive, Article 57.
62 For example, 2014 Public Contracts Directive, Article 58(2).
63 For example, 2014 Public Contracts Directive, Article 58(3).
64 For example, 2014 Public Contracts Directive, Article 58(4).
65 For example, 2014 Public Contracts Directive, Article 63.
66 For example, the 2014 Public Contracts Directive, Article 24.
67 See T-160/03 AFCon Management Consultants and others v. Commission, which was decided under internal Commission rules but the principles in the case are likely to apply to the Defence and Security Procurement Directive.
68 For example, the 2014 Public Contracts Directive, Articles 41 and 57(4)(f).
69 See joined cases C-21/03 and C-34/03 Fabricom SA v. Belgium, Paragraphs 25 to 36.
70 In addition to the 27 EU Member States, the other GPA states are Armenia, Australia, Canada, Hong Kong, Iceland, Israel, Japan, Republic of Korea, Liechtenstein, Moldova, Montenegro, the Netherlands (with respect to Aruba), New Zealand, Norway, Singapore, Switzerland, Chinese Taipei, Ukraine, the United Kingdom (from 1 January 2021, following its exit from the EU) and the United States. A revised and expanded GPA, modernising certain aspects of its rules, entered into force on 6 April 2014.
71 2014 Utilities Contracts Directive, Article 85.
72 For example, 2014 Public Contracts Directive, Article 67; C-532/06 Emm G Lianakis AE and others v. Dimos Alexandroupolis and others, Paragraphs 36 to 38.
73 For example, 2014 Public Contracts Directive, Article 69.
74 For example, 2014 Public Contracts Directive, Article 42(3), (4) and (5).
75 This is codified in, for example, the 2014 Public Contracts Directive, Articles 18(2) and 56(1), which permit authorities to exclude bidders that do not comply with their obligations in the fields of environmental, social and labour law.
76 See C-448/01 EVN AG and Wienstrom GmbH v. Austria, where the bidder was required to show it supplied volumes of 'green' electricity that went far beyond the authority's actual requirement. The CJEU held this was unlawful.
77 Article 13(a) and (b). See also 2014 Public Contracts Directive, Article 15.
78 For example, Public Sector Remedies Directive, Article 2a.
79 European Commission: Report to the European Parliament and the Council on the effectiveness of Directives 89/665/EEC and 92/13/EEC as modified by Directive 2007/66/EC concerning review procedures in the area of public procurement (24 January 2017).
80 See C-440/13 Croce Amica One Italia Srl v. Azienda Regionale Emergenza Urgenza (AREU). The purpose of the review is to ensure that the EU public procurement rules are complied with, so that a simple examination of whether the decision is arbitrary will not suffice.
81 Article 1(1).
82 C-391/15 Marina del Mediterraneo, SL v. Consejeria de Obras Publicas y Vivienda de la Junta de Andalucia.
83 C-355/15 Bietergemeinschaft Technische Gebäudebetreuung GesmbH und Caverion Österreich GmbH v. Universität für Bodenkultur Wien, VAMED Management und Service GmbH & Co. KG in Wien.
84 C-333/18 Lombardi Srl v. Commune di Auletta.
85 C-583/13 eVigilo Ltd v. Priesgaisrines apsaugos ir gelbejimo departamentas prie Vidaus reikalu ministerijos.
86 Article 3.
87 Article 1(1).
88 See national chapters for details of numbers and prospects for challenge.
89 Article 3(1).
90 Article 2(1).
91 Article 2d.