Matei, Emanuela --- "The Remedies Directive in public procurement" [2016] ELECD 929; in Bovis, Christopher (ed), "Research Handbook on EU Public Procurement Law" (Edward Elgar Publishing, 2016) 352

Book Title: Research Handbook on EU Public Procurement Law

Editor(s): Bovis, Christopher

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781953259

Section: Chapter 12

Section Title: The Remedies Directive in public procurement

Author(s): Matei, Emanuela

Number of pages: 38

Abstract/Description:

The initial Remedies Directives suffered from serious shortcomings, in the sense that their provisions did not provide for effective review procedures between the stages of contract award and contract conclusion respectively. This gave rise to direct awards and the so-called race to sign the relevant contract to assume immunity from any redress based on the pacta servanta sunt principle. In addition, at both pre-contractual and post-contractual stages there were no effective deterrents for breach of either procedural or substantive public procurement laws. The European institutions examined carefully two options: first, to entrust the enforcement of the acquis through compliance procedures to the European Commission and secondly to promote the establishment of national independent authorities to monitor compliance of public contracts awards with the acquis. The preferred solution was to introduce a consolidated Directive as a single amending instrument, based on the principles of subsidiarity and proportionality, in an attempt to rectify the shortcomings of the Remedies Directives. The amending Remedies Directiveis based on the previous instruments but it introduced new themes such as a clear divide between pre-contractual and post-contractual stages, a balance between effective review of public contracts and need for efficient public procurement, a strict standstill requirement for contract conclusion, including direct awards by contracting authorities, extensive communication and monitoring requirements and a substantial refocus of the corrective mechanism.