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ECJ Case Law on Remedies
Leading up to the ‘new’ Directives
« Public Procurement Review and Remedies »
Ankara 26-27 February 2008
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Issues
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Timelines (especially standstill period)
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Direct awards
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Remedies outside the scope of the
Directives
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Overview
C-111/97,
 C-81/98,
 C-470/99,
 C-327/00,
 C-249/01,
 C-230/02,
 C-26/03,
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EvoBus
Alcatel
Universale Bau
Santex
Hackermüller
Grossmann Air Services
Stadt Halle
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C-111/97, EvoBus Austria
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Facts:
• Austria failed to implement Directive
92/50/EEC.
• Therefore the competence (jurisdiction)
to hear disputes regarding service
contracts was not attributed to any
court.
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C-111/97, EvoBus Austria
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ECJ: The Court referred to C-54/96,
Dorsch and held that it is for the legal
system of each Member State to
determine which court or tribunal has
jurisdiction to hear disputes involving
individual rights derived from
Community law.
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C-81/98, Alcatel
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Facts:
• Austrian procurement law does not provide for a
specific obligation for a contracting authority to
make the award decision itself known to bidders.
• Contracts are concluded when the successful
bidder receives a notice of acceptance by the
contracting authority.
• The Federal Procurement Office is empowered to
set aside unlawful decisions only before and
until the contract is concluded.
• In practice, tenderers had no knowledge about
award decisions.
• Other tenderers learned about contract in press
and made applications for review 5-15 days later.
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C-81/98, Alcatel
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ECJ:
• Article 2 (1) (b): Power to “set aside … decisions
taken unlawfully, including …” to be defined
widely: “the provision does not lay down any
restrictions with regard to the nature and content
of those decisions”
• Article 2 (6): effects of powers “on a contract
concluded subsequent to its award, “ after the
conclusion of a contract following its award…”
• The decision to award the contract must in all
cases be open to review procedures prior to
the conclusion of the contract.
• Confirmed in C-212/02, Commission v Austria
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C-212/02, Commission v
Austria

ECJ:
• All tenderers must be informed of the contract
award decision prior to the conclusion of the
contract, so that there is a genuine possibility of
bringing an action.
• A reasonable period must elapse between the
time when the award decision is communicated
to unsuccessful tenderers and the conclusion of
the contract, in order to make is possible for
unsuccessful tenderers to have sufficient time
to examine the validity of the award decision and
in particular to apply for interim measures.
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After the ‘Austrian cases’:
open questions:

How long should the standstill period
be?

What are the consequences for the
contracting authorities of not
respecting the standstill period?

Are there any exceptions to the
standstill period?
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Standstill periods in days
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Austria
Czech
Estonia
France
Hungary
Italy
Luxembourg
Netherlands
Portugal
Slovakia
Sweden
7 /14
15
14
10
8
30
15
15
10
14
10.
Bulgaria
Denmark
Finland
Germany
Ireland
Lithuania
Malta
Poland
Romania
Slovenia
10
7-10
21/28
14
14
10
10
7
15
20
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C-470/99, Universale Bau
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Facts:
• (State of) Vienna procurement rules
foresaw limitation periods within which
certain allegedly unlawful decisions could
no longer be challenged.
• After the limitation period had passed,
such decisions could no longer be
challenged.
• Remedies Directive does not provide for
any limitation periods.
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C-470/99, Universale Bau

ECJ:
• In absence of Community rules,
Member States are free to provide
procedural rules if coherent with
fundamental principles of the EC Treaty.
• 2 week limitation period in principle
consistent with principle of
effectiveness and equivalence (C231/96), time limits need to be
appropriate.
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C-327/00, Santex
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Facts:
• Italian law provides that an invitation to tender or
clauses thereof must be challenged within the
limitation period of 60 days. When that period
has expired a challenge is no longer possible.
• Bidder did not contend specific (potentially
discriminatory) clause because contracting
authority led him to believe that disputed clause
would be interpreted in a non-discriminatory
manner.
• After time limitation period had passed,
contracting authority excluded bidder from
tender procedure on the basis of the potentially
discriminatory clause.
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C-327/00, Santex
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ECJ:
• (Citing Universale Bau), found 60 days
period to be reasonable but held that the
changing conduct of the contracting
authority had rendered the exercise of the
rights conferred on tenderer excessively
difficult.
• National court must interpret domestic law,
as far as […] possible, in a way which
accords with the requirements of EC law or
must even, if necessary, refrain from
applying the limitation-period.
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C-249/01, Hackermüller
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Facts/problem:
• May a bidder who has not been
‘eliminated’ by the contracting
authority, be excluded from the
review procedure by a decision of
the review body?
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C-249/01, Hackermüller
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ECJ:
• Elimination of the bid before making the
selection is a decision against which it must be
possible to seek review.
• Review body must afford tenderer right to
challenge the validity of the exclusion in the
review procedure, at the end of which, however,
the review body may reach the conclusion that
the bid should have been eliminated at the
outset and that his application is therefore
dismissed, as he neither has been nor risks
being harmed by the alleged infringement.
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C-230/02, Grossmann Air
Services
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Facts:
• G submitted a tender for the provision of
non-scheduled air transport services for
the Austrian government.
• Government annulled first invitation to
tender, since only one offer remained
after the examination of bids.
• In the second tender G did not submit an
offer but challenged the award decision
on the ground that the tender documents
had been tailored from the outset to the
then successful tenderer Lauda Air.
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C-230/02, Grossmann
Air Services
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ECJ:
It must be possible for an undertaking
to seek review of discriminatory
specifications before submitting a bid
and without waiting for the contract
award procedure to be terminated.
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C-26/03, Stadt Halle
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Facts/problems:
• Is the remedies Directive applicable to
decisions taken outside the formal
award procedure and prior to a formal
call for tenders?
– Decision to award contract outside the formal
procedure.
– Decision not to initiate award procedure.
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C-26/03, Stadt Halle
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Broad meaning of the concept of
‘decision’:
• Any act of a contracting authority
adopted in relation to public contract
capable of producing legal effects
regardless of whether that act is adopted
outside or as part of a formal procedure.
• Not subject to review are acts which
constitute a preliminary study of the
market or which are purely preparatory.
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