Proposal for a directive
Article 38 b (new)
Article 38b Requirements for review procedures (1) Member States shall ensure that the measures taken concerning the review procedures specified in Article [38a] include provision for the powers to: a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority; b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure; c) award damages to persons harmed by an infringement. (2) The powers specified in paragraph 1 and Articles [38f] and [38g] may be conferred on separate bodies responsible for different aspects of the review procedure. (3) When a body of first instance, which is independent of the contracting authority, reviews a contract award decision, Member States shall ensure that the contracting authority cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Articles [38c](2) and [38f](4) and (5). (4) Except where provided for in paragraph 3 and Article [38a](5), review procedures need not necessarily have an automatic suspensive effect on the contract award procedures to which they relate. (5) Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for the interests of defence and security, and may decide not to grant such measures when their negative consequences could exceed their benefits. A decision not to grant interim measures shall not prejudice any other claim of the person seeking such measures. (6) Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers. (7) Except where provided for in Articles [38f] to [38h], the effects of the exercise of the powers referred to in paragraph 1 of this Article on a contract concluded subsequent to its award shall be determined by national law. Except where a decision must be set aside before damages are awarded, a Member State may also provide that, after a contract has been concluded, in accordance with Article [38a] paragraph 5, paragraph 3 of this Article or Articles [38c] to [38h], the powers of the review body shall be restricted to awarding damages to a person harmed by an infringement. (8) Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced. (9) Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measure taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 234 of the EC Treaty and independent of both the contracting authority and the review body. The members of such an independent body shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. In addition, Member States may ensure that the members of review bodies at all instances are individually authorised to handle sensitive information. Member States may establish or designate a special review body to take sole responsibility for reviews in the fields of security and defence. The independent body shall take its decisions in a procedure in which both sides are heard; its decisions shall be legally binding in the manner to be determined by the individual Member States.