Efforts towards achieving effective and adequate remedies in public procurement for better functioning of the EU’s internal market

Abstract

The Remedies Directives are intended to offer remedies to aggrieved tenderers in the public procurement process. Some aspects of the Remedies Directives, such as the review bodies involved in the judicial process and the heads of damages, call for more harmonisation. This will guarantee legal certainty and EU law’s full direct uniform effect in the Member States. The divergent legal norms in the Member States prove that without the much-needed harmonisation of public procurement remedies, there is no effective legal protection for aggrieved tenderers. While one speaks of legal certainty, one rarely speaks of judicial certainty. For judicial certainty to be achieved, there has to be enhanced harmonisation of the review bodies and enhanced harmonisation of the damages awarded by these review bodies. Less effective remedies can lead to legal/judicial barriers, limiting the right of access to the Internal Market. Therefore, enhanced judicial protection in public procurement can contribute to the completion of the Internal Market by ensuring fairer and free competition, more open and non-discriminatory public procurement processes and an increase in cross-border trade within the Internal Market and with third countries.