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Remedies Directive Consultation

10 November 2008

The Remedies Directive was adopted by the EU Council of Ministers and the European Parliament on 11 December 2007 and published in OJEU on 20 December 2007.

It must be implemented by EU Member States no later than 19 December 2009. The Remedies Directive as published amends the existing Directives for the utilities sector and for the public sector.

The Office of Government Commerce (OGC), which is responsible for transposing Directives into UK legislation, began a consultation process in the Summer of this year about how the Remedies Directive should be implemented in the UK.

The consultation ended on 24 October, and the next stage will begin some time next year, when OGC publishes a draft statutory instrument.

The EU Remedies Directive proposes:

• to harmonise standstill arrangements following contract awards
• to introduce ‘ineffectiveness' as a remedy for illegal direct contract awards
• to allow for a review procedure with contracting authorities
• to harmonise time periods (for review and standstill)
• to introduce alternative penalties such as the imposition of (substantial) fines or shortening of the duration of an awarded contract

The idea of the Court being able to declare contract awards ineffective (i.e. to ‘tear them up') is likely to give rise to as many problems as it solves if the statutory instrument is not carefully drafted. This is a real change in the procurement landscape.

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