Edited by Christopher Bovis
Chapter 12: The Remedies Directive in public procurement
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.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.