Effective remedies in public procurement : the case for enhanced harmonisation

Abstract

Public procurement is becoming an increasingly important tool of economic growth, mainly due to the increased role of the public procurement’s contribution to the Gross Domestic Product (“GDP”) of world economies. Public procurement law and policy embrace the principles and procedures that guide contracting authorities and entities that purchase works, goods or services on the market. Public procurement law is intended to ensure that public funds are spent efficiently, that quality is ensured, while obtaining the best price possible. Fair, non-discriminatory, competitive, transparent and value for money tendering processes contribute to a country’s economic development and sound financial management. In return, contracting authorities and economic operators reap economic benefits as well, besides contributing to boost international trade in goods, services and the purchase of works, thus increasing economic growth. Directive 89/665/EEC1 and Directive 92/13/EEC2, as further amended by Directive 2007/66/EC3 (“Remedies Directives”) are the available EU legal instruments to ensure that effective remedies are available in the Member States in instances where an aggrieved bidder who has participated in a public procurement process seeks redress. The Remedies Directives, being minimum Directives, leave a lot of discretion available to the Member States, which coupled with the principle of judicial autonomy, leads to differences in providing effective remedies to injured bidders across the Member States. The Remedies Directives aim to coordinate the judicial remedies in the Member States as much as possible with the ultimate aim being to reach uniform application, legal certainty and effective remedies in the Member States. Besides providing effective remedies, the domestic laws of the Member States need to ensure that necessary checks and balances are adopted and maintained, such that decisions taken by the contracting entities are reviewed expeditiously to avoid further risks of possible award decisions infringing public procurement legislation. At the moment, public procurement remedies and review bodies are essentially governed by the various national laws of the Member States of the EU, but EU law requires the Member States to offer at least certain remedies, whilst granting national systems discretion in determining and enforcing such remedies. Therefore, following an examination of the Remedies Directives, this thesis seeks to answer the question whether there is scope for further harmonisation of the award of damages by the Member States’ national courts and whether there is scope for further streamlining the review bodies in the Member States which award these remedies. Given that this necessity has been affirmed, namely that there is scope for further harmonisation of the heads of damages and the review bodies, changes are being proposed to the aspects of award of damages and review bodies in the Remedies Directives, including the consolidation of the three Remedies Directives into one Directive. These proposed changes are the result of a comparative study of remedies in public procurement law in four Member States namely Malta, Italy, the Netherlands and France, and also by the examination of CJEU jurisprudence. This thesis argues that equal judicial protection is imperative in the Single European Market, so that all aggrieved bidders are treated equally, no matter in which jurisdiction they wish to challenge decisions they regard as unlawful. In order to achieve effectiveness, equivalence and uniformity in the remedies provided, it is also being suggested that it would be preferable to ensure protection at EU level by means of a regulation rather than by means of the current Remedies Directives which leave too much discretion open to the Member States, to the disadvantage of claimants.