Directive 2007/66/EC (Remedies Directive)

Directive 2007/66/EC, commonly referred to as the Remedies Directive, amended and substantially strengthened two earlier remedies instruments: Directive 89/665/EEC for public sector contracts and Directive 92/13/EEC for utilities contracts. It was adopted in December 2007 and required transposition by December 2009. Its core purpose was to close the loophole through which contracting authorities could rush to sign contracts before any legal challenge could be brought, thereby rendering review proceedings pointless.

What is Directive 2007/66/EC?

The 2007 Remedies Directive introduced three key mechanisms that transformed the enforceability of EU procurement rules:

Mandatory standstill period. Contracting authorities must wait a minimum period (at least 10 calendar days when notice is sent electronically, 15 days when sent by other means) between notifying the award decision and signing the contract. This gives unsuccessful bidders time to review the decision and seek interim relief. Signing during the standstill period is unlawful.

Automatic suspension. If an unsuccessful bidder brings a challenge before the standstill period expires, the contract must not be signed until the review body has decided whether to grant interim measures. This automatic suspension prevents authorities from signing contracts to pre-empt ongoing legal proceedings.

Contract ineffectiveness. For the most serious breaches (illegal direct award without publication, breach of standstill rules, or serious procedural violations), national review bodies must have the power to declare a signed contract ineffective (void). This was the most significant innovation: before 2007, the standard remedy for an unlawful award was damages, but the contract itself remained in force. Ineffectiveness is a stronger deterrent.

Alternative penalties. Where ineffectiveness would be disproportionate (for example, because the contract is already substantially performed), review bodies may instead impose shortening of the contract term or financial penalties on the contracting authority.

The Directive does not create a European-level review body. Challenges are brought before national courts or administrative tribunals, which must have the powers required by the Directive. The European Commission can bring infringement proceedings against member states that fail to implement adequate remedies.

Why it matters for bidders

The Remedies Directive is the enforcement engine of European procurement law. The substantive rules in Directive 2014/24/EU and Directive 2014/25/EU tell authorities what they must do; the Remedies Directive tells bidders what they can do if authorities fail to comply.

For an unsuccessful bidder, the practical implications are: you have a window (the standstill period) in which to seek review; if you challenge in time, the contract cannot be signed while your challenge is pending; and if the authority broke the rules badly enough, a signed contract can be unwound. These rights are meaningful only if you monitor award notices, act quickly, and understand the national procedural rules that implement the Directive in the relevant member state.

Example

A Spanish supplier learns that a regional authority awarded a major IT services contract through a direct negotiated procedure without any prior publication. The supplier believes this was unlawful. Because the authority published a contract award notice, the supplier brings a challenge within the statutory period. The national review tribunal, applying powers required by Directive 2007/66/EC, suspends contract performance and ultimately declares the contract ineffective, ordering a new procurement procedure.

Frequently Asked Questions

What is the standstill period and when does it start?

The standstill period begins when all unsuccessful bidders are notified of the award decision and the reasons for it. The minimum is 10 calendar days (electronic notification) or 15 days (other means). Member states may set longer periods in national law. In the UK under the Procurement Act 2023, an equivalent standstill period of 8 working days applies.

Can a signed contract ever be set aside under EU law?

Yes, in the cases of ineffectiveness defined by the Directive: illegal direct award without publication, breach of the standstill period combined with a procedural violation that affected the chances of the challenging bidder, and (for utilities) certain additional grounds. The power to declare ineffectiveness must be available to national review bodies, though courts retain discretion to apply alternative penalties where ineffectiveness is disproportionate.

Does the Directive apply in the UK?

Not directly, as the UK has left the EU. However, the Procurement Act 2023 includes analogous standstill and suspension rights. Bidders challenging UK public procurement use the domestic framework rather than the EU Remedies Directive, though the underlying concepts are similar.