Директива Евросоюза о закупках
Procurement Directives EC directive 89/66
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COUNCIL DIRECTIVE of 21 December 1989
on the coordination of the laws, regulations and administrative
provisions relating to the application of review procedures to the
award of public supply and public works contracts
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100a thereof,
Having regard to the proposal from the Commission (1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee
Whereas Community Directives on public procurement, in particular
Council Directive 71/305/EEC of 26 July 1971 concerning the
coordination of procedures for the award of public works contracts
(4), as last amended by Directive 89/440/EEC (5), and Council
Directive 77/62/EEC of 21 December 1976 coordinating procedures for
the award of public supply contracts (6), as last amended by
Directive 88/295/EEC (7), do not contain any specific provisions
ensuring their effective application;
Whereas the existing arrangements at both national and Community
levels for ensuring their application are not always adequate to
ensure compliance with the relevant Community provisions
particularly at a stage when infringements can be corrected;
Whereas the opening-up of public procurement to Community
competition necessitates a substantial increase in the guarantees
of transparency and non-discrimination; whereas, for it to have
tangible effects, effective and rapid remedies must be available in
the case of infringements of Community law in the field of public
procurement or national rules implementing that law;
Whereas in certain Member States the absence of effective remedies
or inadequacy of existing remedies deter
(1) OJ No C 230, 28. 8. 1987, p. 6 and OJ No C 15, 19. 1. 1989, p.
(2) OJ No C 167, 27. 6. 1988, p. 77 and OJ No C 323,
27. 12. 1989.
(3) OJ No C 347, 22. 12. 1987, p. 23.
(4) OJ No L 185, 16. 8. 1971, p. 5.
(5) OJ No L 210, 21. 7. 1989, p. 1.
(6) OJ No L 13, 15. 1. 1977, p. 1.
(7) OJ No L 127, 20. 5. 1988, p. 1.
Community undertakings from submitting tenders in the Member State
in which the contracting authority is established; whereas,
therefore, the Member States concerned must remedy this situation;
Whereas, since procedures for the award of public contracts are of
such short duration, competent review bodies must, among other
things, be authorized to take interim measures aimed at suspending
such a procedure or the implementation of any decisions which may
be taken by the contracting authority; whereas the short duration
of the procedures means that the aforementioned infringements need
to be dealt with urgently;
Whereas it is necessary to ensure that adequate procedures exist in
all the Member States to permit the setting aside of decisions
taken unlawfully and compensation of persons harmed by an
Whereas, when undertakings do not seek review, certain
infringements may not be corrected unless a specific mechanism is
put in place;
Whereas, accordingly, the Commission, when it considers that a
clear and manifest infringement has been committed during a
contract award procedure, should be able to bring it to the
attention of the competent authorities of the Member State and of
the contracting authority concerned so that appropriate steps are
taken for the rapid correction of any alleged infringement;
Whereas the application in practice of the provisions of this
Directive should be re-examined within a period of four years of
its implementation on the basis of information to be supplied by
the Member States concerning the functioning of the national review
HAD ADOPTED THIS DIRECTIVE:
Article 11. The Member States shall take the measures necessary to
ensure that, as regards contract award procedures falling withing
the scope of Directives 71/305/EEC and 77/62/EEC, decisions taken
by the contracting authorities may be reviewed effectively and, in
particular, as rapidly as possible in accordance with the
conditions set out in the following Articles, and, in particular,
Article 2 (7) on the grounds that such decisions have infringed
Community law in the field of public procurement or national rules
implementing that law.
2. Member States shall ensure that there is no discrimination
between undertakings claiming injury in the context of a procedure
for the award of a contract as a result of the distinction made by
this Directive between national rules implementing Community law
and other national rules.
3. The Member States shall ensure that the review procedures are
available, under detailed rules which the Member States may
establish, at least to any person having or having had an interest
in obtaining a particular public supply or public works contract
and who has been or risks being harmed by an alleged infringement.
In particular, the Member States may require that the person
seeking the review must have previously notified the contracting
authority of the alleged infringement and of his intention to seek
Article 21. The Member States shall ensure that the measures taken
concerning the review procedures specified in Article 1 include
provision for the powers to:
(a) take, at the earliest opportunity and by way of interlocutory
procedures, interim measures with the aim of correcting the alleged
infringement or preventing further damage to the interests
concerned, including measures to suspend or to ensure the
suspension of the procedure for the award of a public contract or
the implementation of any decision taken by the contracting
(b) either set aside or ensure the setting aside of decisions taken
unlawfully, including the removal of discriminatory technical,
economic or financial specifications in the invitation to tender,
the contract documents or in any other document relating to the
contract award procedure;
(c) award damages to persons harmed by an infringement.
2. The powers specified in paragraph 1 may be conferred on separate
bodies responsible for different aspects of the review procedure.
3. Review procedures need not in themselves have an automatic
suspensive effect on the contract award procedures to which they
4. The Member States may provide that when considering whether to
order interim measures the body responsible may take into account
the probable consequences of the measures for all interests likely
to be harmed, as well as the public interest, and may decide not to
grant such measures where their negative consequences could exceed
their benefits. A decision not to grant interim measures shall not
prejudice any other claim of the person seeking these measures.
5. The Member States may provide that where damages are claimed on
the grounds that a decision was taken unlawfully, the contested
decision must first be set aside by a body having the necessary
6. The effects of the exercise of the powers referred to in
paragraph 1 on a contract concluded subsequent to its award shall
be determined by national law.
Furthermore, except where a decision must be set aside prior to the
award of damages, a Member State may provide that, after the
conclusion of a contract following its award, the powers of the
body responsible for the review procedures shall be limited to
awarding damages to any person harmed by an infringement.
7. The Member States shall ensure that decisions taken by bodies
responsible for review procedures can be effectively enforced.
8. Where bodies responsible for review procedures are not judicial
in character, written reasons for their decisions shall always be
given. Furthermore, in such a case, provision must be made to
guarantee procedures whereby any allegedly illegal measure taken by
the review body or any alleged defect in the exercise of the powers
conferred on it can be the subject of judicial review or review by
another body which is a court or tribunal within the meaning of
Article 177 of the EEC Treaty and independent of both the
contracting authority and the review body.
The members of such an independent body shall be appointed and
leave office under the same conditions as members of the judiciary
as regards the authority responsible for their appointment, their
period of office, and their removal. At least the President of this
independent body shall have the same legal and professional
qualifications as members of the judiciary. The independent body
shall take its decisions following a procedure in which both sides
are heard, and these decisions shall, by means determined by each
Member State, be legally binding.
Article 31. The Commission may invoke the procedure for which this
Article provides when, prior to a contract being concluded, it
considers that a clear and manifest infringement of Community
provisions in the field of public procurement has been committed
during a contract award procedure falling within the scope of
Directives 71/305/EEC and 77/62/EEC.
2. The Commission shall notify the Member State and the contracting
authority concerned of the reasons which have led it to conclude
that a clear and manifest infringement has been committed and
request its correction.
3. Within 21 days of receipt of the notification referred to in
paragraph 2, the Member State concerned shall communicate to the
(a) its confirmation that the infringement has been corrected; or
(b) a reasoned submission as to why no correction has been made; or
(c) a notice to the effect that the contract award procedure has
been suspended either by the contracting authority on its own
initiative or on the basis of the powers specified in Article 2 (1)
4. A reasoned submission in accordance with paragraph 3 (b) may
rely among other matters on the fact that the alleged infringement
is already the subject of judicial or other review proceedings or
of a review as referred to in Article 2 (8). In such a case, the
Member State shall inform the Commission of the result of those
proceedings as soon as it becomes known.
5. Where notice has been given that a contract award procedure has
been suspended in accordance with paragraph 3 (c), the Member State
shall notify the Commission when the suspension is lifted or
another contract procedure relating in whole or in part to the same
subject matter is begun. That notification shall confirm that the
alleged infringement has been corrected or include a reasoned
submission as to why no correction has been made.
Article 41. Not later than four years after the implementation of
this Directive, the Commission, in consultation with the
Advisory Committee for Public Contracts, shall review the manner in
which the provisions of this Directive have been implemented and,
if necessary, make proposals for amendments.
2. By 1 March each year the Member States shall communicate to the
Commission information on the operation of their national review
procedures during the preceding calendar year. The nature of the
information shall be determined by the Commission in consultation
with the Advisory Committee for Public Contracts.
Article 5Member States shall bring into force, before 1 December
1991, the measures necessary to comply with this Directive. They
shall communicate to the Commission the texts of the main national
laws, regulations and administrative provisions which they adopt in
the field governed by this Directive.
Article 6This Directive is addressed to the Member States.
Done at Brussels, 21 December 1989.
For the Council