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The New Provisions of the Amended Remedies Directive

The New Provisions of the Amended Remedies Directive. by Peter Trepte/Jens Fejoe. « Public Procurement Review and Remedies » Ankara 26-27 February 2008. Remedies for Suppliers before National Review Bodies. Remedies Directives Remedies Directives 89/665 (public sector) 92/13 (utilities)

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The New Provisions of the Amended Remedies Directive

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  1. The New Provisions of the Amended Remedies Directive by Peter Trepte/Jens Fejoe « Public Procurement Review and Remedies »Ankara 26-27 February 2008

  2. Remedies for Suppliers before National Review Bodies • Remedies Directives • Remedies Directives 89/665 (public sector) • 92/13 (utilities) • Minimum standards: • Review before Independent body • General principles, • in particular effective remedies • Specified remedies: • suspension; set-aside of remedies; damages

  3. Basic principles • Effectiveness • National procedural autonomy

  4. Amended Remedies Directive • Dir 2007/66 amending Dir 89/665 and Dir 92/13 • Entered into force 10 January 2008 • But MS shall bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 20 December 2009

  5. Amended Remedies Directive • Explicit provisions with the purpose to make remedies in the MS more effective • The new explicit provisions include strict interpretations of existing ECJ case law, e.g. time limits, standstill, notification • New provisions, e.g. automatic suspension, ineffectiveness sanctions • Upholds a series of provisions on national choice/discretion

  6. Amended Remedies Directive • Specificly • New provisions on availability of review procedures • New provisions on requirements for review procedures • Stand still period and derogations herefrom • Time limits for applying for review • Ineffectiveness • Infringements and alternative penalties

  7. Amended Remedies Directive • Specificly (cont.) • Ineffectiveness • Infringements of the Directive and alternative penalties • Corrective mechanism • Notice for ex ante transparency-content • Committee procedure • Implementation • Review

  8. Amended Remedies Directive • Effectiveness • Designed to give effective remedies/enforcement • Effectiveness principle stated expressly • Practical consequenses: • Encouraged action by national legislators • Focuses attention of Commission on the issue • Publicity for suppliers of their rights • Judicial development, e.g. Alcatel • The requirements of the Directive probably more demanding than the general EU law principles

  9. Amended Remedies Directive • Dropped remedies • conciliation • attestation

  10. Amended Remedies Directive • National procedural autonomy • Member States have discretion on how to set up the system within the Directive • Many explicit provisions on discretion: • Review procedures need not necessarily have suspensive effect • MS provide only for damages after contracts concluded • When negative consequences exceed the benefits MS may deny interim remedies • Standing to be given to suppliers under detailed rules that MS establish • Remedies may be divided between different review authorities • States may require a set aside as a condition for damages

  11. Amended Remedies Directive • Questions ? • ?? • ????

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