Many Different Paths, But are They All Leading to Effectiveness?

Abstract

Given the partial harmonisation brought about by the remedies directives, judicial protection of actual or potential bidders is still differentiated in the Member States.

This is due to a number of reasons, some of which pertain to the path followed when implementing the directives. A relevant one has to do with the different techniques followed. Some Member States, such the UK have been reacting to the remedies directives and to the judgments handed down by the Court of justice by changing the national legislation as less as possible. Of course, the assessment by a Member State of the minimum requirement for correct implementation may or may not be shared by EU institutions including the Court of justice). The latter might be true with Romania, where newly introduced remedies were almost immediately amended trying to bring them in line with EU law. A variation to this approach might be the German one, where the concern not to change too much was focused on the existing dogmatic constructions more than on preserving as much as possible the legal texts already in force at the time of the implementation of Directives 2007/66/EC. In France, on the contrary, EU law remedies have been generously implemented. Only they were piled up onto the existing one, leading to a somewhat complicated picture. By contrast, in Italy the occasion provided by the implementation of the directive has been taken to recast the entire system of remedies for breaches of public contract rules.

A partially different aspect is the scope of application given to the rules taken in implementing the EU directives. This aspect was already discussed. Here it is enough to recall that many Member States such as the UK favor a narrow implementation not going beyond the express requirements of EU law, while others, such as France and Italy don’t think it fit to have diverging legal protection systems based on whether the 2004 directives apply or not.

Putting together these differences one does not find the traditional comparative law opposition between civil law and common law. The picture is one of characterised by the divergence between jurisdictions traditionally considering contracts passed by public authorities as one of the partitions of public law, such as France, and jurisdictions classing them under private (or budgetary) law, such as Germany, the UK, and to some extent Denmark. Those Member States in the first group did not need more than a few technical fine-tuning to their legislation and case law to accommodate the new remedies provided by Directive 2007/66/EC. To the other jurisdictions the new remedies – and even some of the old – are rather novel and foreign, and implementation normally does not go beyond what is expressly required by EU law. Italy is somewhat of a touchstone. Traditionally public law ruled the award of the contract but private law ruled its conclusion and performance. Directive 2007/66/EC has strengthened a tendency already present to link more closely award and conclusion under the empire of public law, avoiding a situation where contracts passed in breach of public law are still playing their effects.

Differences in approach are still quite present. However, the quite dramatic original divergences among the Member States – some of which, such as Germany, were not even providing remedies for disaffected competitors – have been considerably reduced. This is not only the result of harmonization. National courts are often looking into the case law of the EU courts to design the conditions under which different remedies are to be granted. This has been the case for instance in Denmark concerning interim relief. Better knowledge of the national case law would probably further contribute towards spontaneous convergence.