Report on the effectiveness of Directive 89/665/EEC and Directive 92/13/EEC concerning review procedures in the area of public procurement

The Procurement Directives regulate award procedures and limited aspects of the execution of public contracts and concession contracts above certain thresholds. The estimated value of tenders published in 'Tenders Electronic Daily' (TED) in 2014 amounted to 421.31 billion euros, which is 3.32% of the EU GDP. Open and well regulated procurement markets contribute to a more efficient use of public resources and to the improvement in the quality of public purchases.

The experience acquired with the Procurement Directives showed that to fully meet their objectives, economic operators had to be able to enforce the rights conferred by these Directives everywhere in the EU. Consequently, the Remedies Directives (Directives 89/665/EEC and 92/13/EEC, as amended through Directive 2007/66/EC) were adopted as flanking measures. These Directives aimed at ensuring that, based on minimum EU review standards, economic operators everywhere in the EU would have access to rapid and effective procedures for seeking redress in cases where they considered that contracts had been awarded in breach of the Procurement Directives. The Remedies Directives are therefore an essential piece in the public procurement landscape and a unique example in EU law of giving full effect to EU rights at national level.

The Remedies Directives provide that the Commission reviews their implementation and reports to the European Parliament and the Council on their effectiveness, in particular as regards the alternative penalties and time limits introduced by Directive 2007/66/EC. In addition, in 2013 it was decided to carry out an evaluation under the Commission Programme on Regulatory Fitness and Performance (REFIT) of these Directives. The present report is submitted to Parliament and the Council with a view to fulfil the legal obligation to report to Parliament and Council and to communicate the results of the REFIT evaluation. The Staff Working Document accompanying this report provides additional detail on the evaluation carried out.

In order to prepare the present report, the following sources of information were used:
- the study 'Economic efficiency and legal effectiveness of review and remedies procedures for public contracts';
- an open online public consultation that aimed to collect evidence on the functioning and added value of the Remedies Directives;
- consultations with Member States;
- a number of targeted consultations with experts and practitioners in public procurement litigation; and
- a review of national legislation and case law.
In addition to evaluating the policy performance of the Directives, the evaluation under REFIT has a specific focus on whether the Remedies Directives are fit for purpose, minimise associated costs and burdens and maximise the simplification potential.

There is currently no EU-wide monitoring and evaluation system of remedies in Member States. Data for remedies actions on public contracts above thresholds brought in each Member State are not collected in a structured, coherent and systemic manner that would allow analysing the results obtained in an automated and easily comparable way. For this reason, the proper measurement or estimation of the effects of the Remedies Directives is difficult and requires additional actions (e.g. one-off data collection and manual analysis, as it was the case in the current evaluation).

EUR-Lex: SWD(2017)13: Evaluation of the modifications introduced by Directive 2007/66/EC to Directives 89/665/EEC and 92/13/EEC concerning the European framework for remedies in the area of public procurement - REFIT evaluation http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=SWD:2017:013:FIN

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