Research Handbook on EU Public Procurement Law
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Research Handbook on EU Public Procurement Law

  • Research Handbooks in European Law series

Edited by Christopher Bovis

The Research Handbook on EU Public Procurement Law makes a major contribution to our understanding of the EU public procurement regime, at a time when it is being implemented by the EU Member States, and of the pivotal role that this will play for the delivery of the European 2020 Growth Strategy. The internal market relies on a simplified regime in the European Union, which will result from procedural efficiencies and from streamlining the application of the substantive rules. The Research Handbook has comprehensive thematic coverage which includes: public procurement regulation, strategic procurement, justiciability in public procurement, public procurement and competition and public procurement and public service.
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Chapter 12: The Remedies Directive in public procurement

Emanuela Matei

Extract

The initial Remedies Directives suffered from serious shortcomings, in the sense that their provisions did not provide for effective review procedures between the stages of contract award and contract conclusion respectively. This gave rise to direct awards and the so-called race to sign the relevant contract to assume immunity from any redress based on the pacta servanta sunt principle. In addition, at both pre-contractual and post-contractual stages there were no effective deterrents for breach of either procedural or substantive public procurement laws. The European institutions examined carefully two options: first, to entrust the enforcement of the acquis through compliance procedures to the European Commission and secondly to promote the establishment of national independent authorities to monitor compliance of public contracts awards with the acquis. The preferred solution was to introduce a consolidated Directive as a single amending instrument, based on the principles of subsidiarity and proportionality, in an attempt to rectify the shortcomings of the Remedies Directives. The amending Remedies Directiveis based on the previous instruments but it introduced new themes such as a clear divide between pre-contractual and post-contractual stages, a balance between effective review of public contracts and need for efficient public procurement, a strict standstill requirement for contract conclusion, including direct awards by contracting authorities, extensive communication and monitoring requirements and a substantial refocus of the corrective mechanism.

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