The new provisions of the amended Remedies Directive

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The new provisions of the amended Remedies
Directive

• by
• Peter Trepte/Jens Fejoe
• Ankara, 26 february 2008

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Remedies for Suppliers before National Review
Bodies

• Remedies Directives
• Remedies Directives 89/665 (public sector)
• 92/13 (utilities)
• Minimum standards
• Review before Independent body
• General principles,
• in particular effective remedies
• Specified remedies
• suspension set-aside of remedies damages

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Basic principles

• Effectiveness
• National procedural autonomy

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Amended Remedies Directive

• Dir 2007/66 amending Dir 89/665 and Dir 92/13
• Entered into force 10 January 2008
• But MS shall bring into force the laws,
  regulations and administrative provisions
  necessary to comply with the directive by 20
  December 2009

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Amended Remedies Directive

• Explicit provisions with the purpose to make
  remedies in the MS more effective
• The new explicit provisions include strict
  interpretations of existing ECJ case law, e.g.
  time limits, standstill, notification
• New provisions, e.g. automatic suspension,
  ineffectiveness sanctions
• Upholds a series of provisions on national
  choice/discretion

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Amended Remedies Directive

• Specificly
• New provisions on availability of review
  procedures
• New provisions on requirements for review
  procedures
• Stand still period and derogations herefrom
• Time limits for applying for review
• Ineffectiveness
• Infringements and alternative penalties

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Amended Remedies Directive

• Specificly (cont.)
• Ineffectiveness
• Infringements of the Directive and alternative
  penalties
• Corrective mechanism
• Notice for ex ante transparency-content
• Committee procedure
• Implementation
• Review

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Amended Remedies Directive

• Effectiveness
• Designed to give effective remedies/enforcement
• Effectiveness principle stated expressly
• Practical consequenses
• Encouraged action by national legislators
• Focuses attention of Commission on the issue
• Publicity for suppliers of their rights
• Judicial development, e.g. Alcatel
• The requirements of the Directive probably more
  demanding than the general EU law principles

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Amended Remedies Directive

• Dropped remedies
• conciliation
• attestation

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Amended Remedies Directive

• National procedural autonomy
• Member States have discretion on how to set up
  the system within the Directive
• Many explicit provisions on discretion
• Review procedures need not necessarily have
  suspensive effect
• MS provide only for damages after contracts
  concluded
• When negative consequences exceed the benefits MS
  may deny interim remedies
• Standing to be given to suppliers under detailed
  rules that MS establish
• Remedies may be divided between different review
  authorities
• States may require a set aside as a condition for
  damages

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Amended Remedies Directive

• Questions ?
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