The European Union (EU) has since long recognised that unsuccessful tenderers in EU Member States must have access to legal remedies and introduced a legal framework for the judicial protection of tenderers. The EU realised that relying solely on the Member States to regulate legal remedies might not offer sufficient protection. Over the years, the case law of the Court of Justice of the European Union (CJEU) has strengthened the rules set out in the Remedies Directive (Directive 89/665/EEC) and ensured the protection of unsuccessful tenderers.
However, when choosing who will be awarded a contract with the EU Commission or any other EU institution (in the broad sense), the EU contracting authorities are not subject to the Remedies Directive. When participating in tender procedures for contracts with the EU Commission for example, aggrieved tenderers can only rely on the general rules regarding judicial remedies provided for in the EU Treaties. This difference between domestic and EU tender procedures naturally raises concerns as to the effectiveness of legal remedies against EU tender decisions in comparison with domestic tender decisions. Additionally, the lack of specific legal remedies against EU tender decisions creates uncertainty and unpredictability of the outcome of legal challenges.
In an article by Joren Vuylsteke, Aude Van den Bussche and Valentijn De Boe published in the latest issue of the Public Procurement Law Review, our public procurement experts systematically analyse the remedies available to unsuccessful tenders and the EU courts’ most recent case law. The article focuses on the specific requirements for successfully challenging a decision by an EU contracting authority based on the most recent case law by the CJEU. We identify procedural obstacles and highlight the gaps in the judicial protection of tenderers at the EU level, whose shortcomings are glaring compared to the protection offered to tenders by the Remedies Directive.
Although the CJEU has made strides to address some of the difficulties faced by unsuccessful tenders in seeking redress, especially interim relief, the comparatively lower protection enjoyed at the EU level appears increasingly unjustified and, in our view, would require legislative changes.
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