Keywords
Summary

Keywords

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1. Acts of the institutions ° Directives ° Implementation by the Member States ° Transposition of a directive without legislative action ° Conditions ° Legal certainty guaranteed to individuals ° Inadequacy of case-law securing for individuals, in the absence of legislation, the rights provided for by the directive

(Council Directive 89/665, Art. 2)

2. Acts of the institutions ° Directives ° Implementation by the Member States ° Directive 89/665 ° Obligation for Member States to organize for public contracts a procedure allowing the Commission to intervene in the event of an infringement of Community law ° Possibility for Member States to confer the responsibilities of contracting authorities on private persons ° Implementation unable to be secured by the mere application of Article 5 of the Treaty ° Need for implementing measures

(EC Treaty, Art. 5; Council Directive 89/665, Art. 3)

Summary

1. As far as the implementation of directives is concerned, it is particularly important, in order to satisfy the requirement for legal certainty, that individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts.

This is not the case where, in a Member State, case-law interprets national legislation in accordance with Directive 89/665 on review procedures relating to public contracts and the view is taken that this constitutes an adequate system of interim judicial protection for the purposes of the directive, but that legislation does not transpose correctly the requirements laid down in Article 2 of the directive as regards the power of review bodies in the Member States to take any interim measures with regard to the award of public contracts independently of any prior action.

2. In so far as private persons may be given the responsibilities of contracting authorities in connection with the award of contracts covered by Directive 89/665 on review procedures relating to public contracts, the obligation of bona fide cooperation and assistance to which the Member States are subject under Article 5 of the EC Treaty in order to facilitate the achievement of the Commission' s tasks is not sufficient to secure the implementation of Article 3 of the directive, which organizes the procedure for the intervention of the Commission with the Member State' s competent authorities and the contracting authority in question if it considers that a clear and manifest infringement of Community law has been committed during a procedure for the award of a public contract.