What does the new Remedies Directive do?
There are a number of provisions in the directive, some of which will amend the standstill provisions (without changing the basic thrust of them). However, the single most important provision is the introduction of the remedy of ineffectiveness. At the moment, it is a fairly clear principle that once a contract has been entered into, even if in breach of procurement rules, the only remedy for a disgruntled contractor is in damages. The European Commission takes the view that the current regime contains weaknesses and fails to fully protect the principles of transparency and non-discrimination and that, in certain cases, it is proportionate and dissuasive to have a remedy of ineffectiveness. Those cases relate on the whole to illegal direct awards, which the European Court of Justice (ECJ) has called the most serious breach of community law in the field of public procurement. For the flagrant breach, ie a direct award either knowingly avoiding competition or simply through ignorance of
