Effective remedies in public procurement:the case for enhanced harmonisation

This thesis examines the public procurement Remedies Directives (Directive 89/665/EEC and Directive 92/13/EEC, as further amended by Directive 2007/66/EC), with a view to explore whether there is scope for enhanced harmonisation of the award of damages by the Member States national courts and whether there is scope for further streamlining the review bodies in the Member States which award these remedies.The Remedies Directives, being minimum Directives, leave a lot of discretion available to the Member States, which coupled with the principle of judicial autonomy, leads to differences in providing effective remedies to aggrieved bidders of the public procurement process across the Member States. The Remedies Directives aim to coordinate as much as possible the judicial remedies in the Member States with the ultimate aim being to reach uniform application and effective remedies in the Member States. At the moment, public procurement remedies and review bodies are essentially governed by the various national laws of the Member States of the EU, but EU law requires the Member States to offer at least certain remedies, while still leaving the national systems free to make some choices. To this effect, the author proposes prudent changes to the Remedies Directives. These changes are proposed following a comparative law study of remedies in public procurement law in four Member States, namely, Malta, Italy, the Netherlands and France, and also by the examination of CJEU jurisprudence. This thesis argues that equal judicial protection is imperative in the Single European Market, so that all aggrieved bidders are treated equally, in no matter which jurisdiction they wish to challenge decisions they regard as unlawful. In order to achieve effectiveness and equivalence in the remedies provided, the author suggests that it would be preferable to ensure protection at EU level by means of a regulation rather than by means of the current Remedies directives which leave too much discretion open to the Member States, to the disadvantage of claimants