Complaint to Commission
A person may complain to the Commission or the authorities in a State of breach of relation to a breach of procurement legislation.
The Commission may notify clear infringements of community law where this becomes apparent before a contract is concluded. These must be clear and manifest infringements. After 21 or 30 days (different in each Directive), the State is obliged to confirm that the infringement has been corrected or justify why no correction has been made or confirm that a suspension of the award procedures has been ordered. If the suspension is lifted, the Commission must be informed.
Procedure for Nullification
The Commission may invoke a procedure for nullification of infringement to a State and requiring its rectification. There must generally be a clear r and manifest infringement. After 30 days from notification by the Commission, the Member State is obliged to confirm that matter has been corrected or justify why no correction has been made or confirm that the award has been suspended. The Commission may embark on the reconciliation procedure and reserve its right to take legal proceedings.
Members of the public may complain to the Commission or other authorities about a breach of procurement law. The public authorities may choose to take action.
The Commission has no specific remedies under the Remedies Directive. It may take action against Member States under generally EU law for breach of community obligations. The principal purpose of the procedure is to allow the Commission to formally show that there was a breach and determine whether it has been resolved or dealt with satisfactorily by the States.
Proceedings by Commission
The Commission may bring compliance proceedings before the Court of Justice of the European Union under general Treaty powers to do so. They are brought against the Member State which are held responsible for the acts of their central and local authorities.
Some authorities may be outside the scope of the State’s responsibilities. If, for example, the acts are wholly outside the control of the State, the State may not be accountable.
The European Court of Justice may grant interim measures under its general jurisdiction on application by the Commission. Interim measures may be awarded where proceedings are initiated against the State. The Commission may suspend its own procedures.
Interim relief will require the establishment of a prima facie case. A sufficient foundation generally requires that serious and irreparable harm will occur if not restrained. The European Commission may take account of the general interest of the Community.
The interests of the parties must be balanced. The court will measure the possible detriment against the benefit. The general public interest is balance against individual interests, delay and harm to the public may be taken into account, such as where the delay in the contact may prevent what is urgently required for health or other reasons. However, in the appropriate cases, a court may grant interim measures notwithstanding that public health or the environment might be adversely affected by the delay in the award.
Save where it is the guardian of European Union law and public interests, the judgment of the Court is declaratory in cases involving States. In theory, periodic fines may be imposed if there is a default in compliance with the judgment.
It is not clear whether the States are required to set aside an awarded contract where the Court of Justice makes a declaration. States however have a duty to implement EU law, and there are procedures for enforcement by which the Commission may require States to implement it.
Challenge by Parties
Under the Remedies Directive, States must not unduly restrict the ability of parties to challenge public procurement decisions. Parties must have an interest in the matter, but the concept of interest is not to be interpreted overly narrowly. Mechanisms which require mandatory pre-judicial stages may be contrary to the requirement as a speedy judicial remedy is required under the Remedies Directive.
Unsuccessful candidates must have a meaningful opportunity to challenge the validity of the award. There must be a reasonable time between the decision being made public and the time limit for making applications for measures, in particular the possibility of suspensory measures. Tenderers should be informed of the decision prior to the entry of a contract to give them the opportunity to challenge.
The right to challenge under procurement law is not limited to the decision itself. Depths in the procedure and the decision as to the application or otherwise of rules of the particular contracts may be challenged. Challenge may extend to decisions made by the contracting authority. For example, a decision not to apply the rules at all on the basis that the contract falls outside the procurement rules, is itself open to challenge.
Key steps in the process may be challenged as decisions. However many preliminary and proprietary steps are not decisions for this purpose. Parties must be able to challenge the validity of the relevant decisions, procedurally and in accordance with substantive EU procurement law and general EU law principles of equality.
The fact that one decision in the award process is unlawful does not necessarily annul the final decision. After the conclusion of the contract, damages will generally be the appropriate remedy. In contrast, if the review relates to an earlier stage of the procedure, the process may be stopped and restarted.
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