Awards of public contracts and concessions — public supply and public works contracts

SUMMARY OF:

Directive 89/665/EEC 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

WHAT IS THE AIM OF THE DIRECTIVE?

It requires EU countries to ensure that decisions on the award of public contracts and concessions, as well as preliminary procedural decisions in that context, are reviewed quickly and effectively in the event they have infringed EU public procurement law.

KEY POINTS

Directive 89/665/EEC applies to public contracts in the public sector and concessions falling within the scope of the relevant substantive rules (i.e. rules that define rights and obligations). Directive 2014/23/EU (see summary) and Directive 2014/24/EU (see summary) replace Directive 2004/18/EC from 18 April 2016.
EU countries must ensure that the review procedures are available at least to any person having, or having had, an interest in obtaining a particular contract and who has been, or risks being, harmed by an alleged infringement.
Directive 89/665/EEC allows actions to be brought both before the contract is signed (pre-contractual remedies) and after (post-contractual remedies).
- Pre-contractual remedies are intended to correct the infringement of the public procurement rules in the course of the tendering procedure and, in any event, before the contract becomes effective. They include the right to interim measures, a compulsory standstill period and the requirement to suspend the award procedure whilst the appeal is being investigated to prevent the award of the contract.
- Post-contractual remedies aim to declare an existing contract ineffective and/or to provide compensation (mainly damages) to the affected parties after the contract in question has been awarded.

FROM WHEN DOES THE DIRECTIVE APPLY?

It has applied since 3 January 1990 and had to become law in the EU countries by 21 December 1991.

BACKGROUND

Directive 89/665/EEC was thoroughly amended by Directive 2007/66/EC. Directive 2014/23/EU introduced further amendments, mainly to extend the scope of Directive 89/665/EEC with regard to concessions under Directive 2014/23/EU and to update the references to the substantive rules for public contracts laid down in Directive 2014/24/EU.
Directive 92/13/EEC (see summary) is the equivalent of Directive 89/665/EEC for public contracts in the utilities sector. It was thoroughly amended by Directive 2007/66/EC. Directive 2014/23/EU introduced further amendments for the needs of Directive 2014/25/EU (see summary).

MAIN DOCUMENT

Council Directive 89/665/EEC 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, pp. 33-35)

Successive amendments to Directive 89/665/EEC have been incorporated in the original text. This consolidated version is of documentary value only.