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Document 01989L0665-20140417
Council Directive of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (89/665/EEC)
Consolidated text: Council Directive of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (89/665/EEC)
Council Directive of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (89/665/EEC)
01989L0665 — EN — 17.04.2014 — 003.001
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COUNCIL DIRECTIVE of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395 30.12.1989, p. 33) |
Amended by:
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Official Journal |
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No |
page |
date |
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L 209 |
1 |
24.7.1992 |
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DIRECTIVE 2007/66/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2007 |
L 335 |
31 |
20.12.2007 |
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DIRECTIVE 2014/23/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 February 2014 |
L 94 |
1 |
28.3.2014 |
Corrected by:
COUNCIL DIRECTIVE
of 21 December 1989
on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts
(89/665/EEC)
Article 1
Scope and availability of review procedures
This Directive also applies to concessions awarded by contracting authorities, referred to in Directive 2014/23/EU of the European Parliament and of the Council ( 9 ) unless such concessions are excluded in accordance with Articles 10, 11, 12, 17 and 25 of that Directive.
Contracts within the meaning of this Directive include public contracts, framework agreements, works and services concessions and dynamic purchasing systems.
Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2014/24/EU or Directive 2014/23/EU, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Union law in the field of public procurement or national rules transposing that law.
Member States shall decide on the appropriate means of communication, including fax or electronic means, to be used for the application for review provided for in the first subparagraph.
The suspension referred to in the first subparagraph shall not end before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contracting authority has sent a reply if fax or electronic means are used, or, if other means of communication are used, before the expiry of either at least 15 calendar days with effect from the day following the date on which the contracting authority has sent a reply, or at least 10 calendar days with effect from the day following the date of the receipt of a reply.
Article 2
Requirements for review procedures
Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to:
take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;
either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;
award damages to persons harmed by an infringement.
A decision not to grant interim measures shall not prejudice any other claim of the person seeking such measures.
Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract in accordance with Article 1(5), paragraph 3 of this Article or Articles 2a to 2f, the powers of the body responsible for review procedures shall be limited to awarding damages to any person harmed by an infringement.
The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.
Article 2a
Standstill period
Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.
Candidates shall be deemed to be concerned if the contracting authority has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.
The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:
Article 2b
Derogations from the standstill period
Member States may provide that the periods referred to in Article 2a(2) of this Directive do not apply in the following cases:
if Directive 2014/24/EU or, where relevant, Directive 2014/23/EU does not require prior publication of a contract notice in the Official Journal of the European Union;
if the only tenderer concerned within the meaning of Article 2a(2) of this Directive is the one who is awarded the contract and there are no candidates concerned;
in the case of a contract based on a framework agreement as provided for in Article 33 of Directive 2014/24/EU and in the case of a specific contract based on a dynamic purchasing system as provided for in Article 34 of that Directive.
If this derogation is invoked, Member States shall ensure that the contract is ineffective in accordance with Articles 2d and 2f of this Directive where:
Article 2c
Time limits for applying for review
Where a Member State provides that any application for review of a contracting authority's decision taken in the context of, or in relation to, a contract award procedure falling within the scope of ►M3 Directive 2014/24/EU or Directive 2014/23/EU ◄ must be made before the expiry of a specified period, this period shall be at least 10 calendar days with effect from the day following the date on which the contracting authority's decision is sent to the tenderer or candidate if fax or electronic means are used or, if other means of communication are used, this period shall be either at least 15 calendar days with effect from the day following the date on which the contracting authority's decision is sent to the tenderer or candidate or at least 10 calendar days with effect from the day following the date of the receipt of the contracting authority's decision. The communication of the contracting authority's decision to each tenderer or candidate shall be accompanied by a summary of the relevant reasons. In the case of an application for review concerning decisions referred to in Article 2(1)(b) of this Directive that are not subject to a specific notification, the time period shall be at least 10 calendar days from the date of the publication of the decision concerned.
Article 2d
Ineffectiveness
Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:
if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with Directive 2014/24/EU or Directive 2014/23/EU;
in case of an infringement of Article 1(5), Article 2(3) or Article 2a(2) of this Directive, if this infringement has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with an infringement of ►M3 Directive 2014/24/EU or Directive 2014/23/EU ◄ , if that infringement has affected the chances of the tenderer applying for a review to obtain the contract;
in the cases referred to in the second subparagraph of Article 2b(c) of this Directive, if Member States have invoked the derogation from the standstill period for contracts based on a framework agreement and a dynamic purchasing system.
National law may provide for the retroactive cancellation of all contractual obligations or limit the scope of the cancellation to those obligations which still have to be performed. In the latter case, Member States shall provide for the application of other penalties within the meaning of Article 2e(2).
Economic interests in the effectiveness of the contract may only be considered as overriding reasons if in exceptional circumstances ineffectiveness would lead to disproportionate consequences.
However, economic interests directly linked to the contract concerned shall not constitute overriding reasons relating to a general interest. Economic interests directly linked to the contract include, inter alia, the costs resulting from the delay in the execution of the contract, the costs resulting from the launching of a new procurement procedure, the costs resulting from the change of the economic operator performing the contract and the costs of legal obligations resulting from the ineffectiveness.
The Member States shall provide that paragraph 1(a) of this Article does not apply where:
The Member States shall provide that paragraph 1(c) of this Article does not apply where:
Article 2e
Infringements of this Directive and alternative penalties
Alternative penalties must be effective, proportionate and dissuasive. Alternative penalties shall be:
Member States may confer on the review body broad discretion to take into account all the relevant factors, including the seriousness of the infringement, the behaviour of the contracting authority and, in the cases referred to in Article 2d(2), the extent to which the contract remains in force.
The award of damages does not constitute an appropriate penalty for the purposes of this paragraph.
Article 2f
Time limits
Member States may provide that the application for review in accordance with Article 2d(1) must be made:
before the expiry of at least 30 calendar days with effect from the day following the date on which:
and in any case before the expiry of a period of at least six months with effect from the day following the date of the conclusion of the contract.
Article 3
Corrective mechanism
Within 21 calendar days of receipt of the notification referred to in paragraph 2, the Member State concerned shall communicate to the Commission:
its confirmation that the infringement has been corrected;
a reasoned submission as to why no correction has been made; or
a notice to the effect that the contract award procedure has been suspended either by the contracting authority on its own initiative or on the basis of the powers specified in Article 2(1)(a).
Article 3a
Content of a notice for voluntary ex ante transparency
The notice referred to in the second indent of Article 2d(4), the format of which shall be adopted by the Commission in accordance with the advisory procedure referred to in Article 3b(2), shall contain the following information:
the name and contact details of the contracting authority;
a description of the object of the contract;
a justification of the decision of the contracting authority to award the contract without prior publication of a contract notice in the Official Journal of the European Union;
the name and contact details of the economic operator in favour of whom a contract award decision has been taken; and
where appropriate, any other information deemed useful by the contracting authority.
Article 3b
Committee procedure
Article 4
Implementation
Article 4a
Review
No later than 20 December 2012, the Commission shall review the implementation of this Directive and report to the European Parliament and to the Council on its effectiveness, and in particular on the effectiveness of the alternative penalties and time limits.
Article 5
►C1 Member States shall bring into force, before 21 December 1991, ◄ the measures necessary to comply with this Directive. They shall communicate to the Commission the texts of the main national laws, regulations and administrative provisions which they adopt in the field governed by this Directive.
Article 6
This Directive is addressed to the Member States.
( 1 ) OJ No C 230, 28.8.1987, p. 6 and OJ No C 15, 19.1.1989, p. 8.
( 2 ) OJ No C 167, 27.6.1988, p. 77 and OJ No C 323, 27.12.1989.
( 3 ) OJ No C 347, 22.12.1987, p. 23.
( 4 ) OJ No L 185, 16.8.1971, p. 5.
( 5 ) OJ No L 210, 21.7.1989, p. 1.
( 6 ) OJ No L 13, 15.1.1977, p. 1.
( 7 ) OJ No L 127, 20.5.1988, p. 1.
( 8 ) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement (OJ L 94, 28.3.2014, p. 65).
( 9 ) Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contract (OJ L 94, 28.3.2014, p. 1).
( 10 ) OJ L 185, 16.8.1971, p. 15. Decision as amended by Decision 77/63/EEC (OJ L 13, 15.1.1977, p. 15).
( 11 ) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).