Directive 92/13/EEC (Remedies Directive - Utilities)

Directive 92/13/EEC is the counterpart to Directive 89/665/EEC for the utilities sector. Adopted in February 1992, it applies to procurement by entities operating in water, energy, transport, and postal services under what is now Directive 2014/25/EU. Like its public sector sibling, it has been amended by Directive 2007/66/EC, which introduced standstill periods and contract ineffectiveness powers for utilities procurement as well.

What is Directive 92/13/EEC?

Directive 92/13/EEC requires EU member states to ensure that effective review procedures are available to suppliers who believe a utilities contracting entity has broken EU procurement rules. The core rights it mandates are the same as those in the public sector remedies directive: interim suspension of unlawful decisions, powers to set aside those decisions, and access to damages.

However, the Directive includes one feature absent from the public sector remedies framework: an attestation procedure and a conciliation mechanism. These were designed to reflect the more commercial and competitive nature of utilities markets:

Attestation. Contracting entities may undergo voluntary attestation by independent attestors who examine whether their procurement practices comply with EU rules. An attestation certificate provides some defence against challenge and signals market credibility.

Conciliation. The Directive establishes a conciliation procedure administered through the European Commission. A supplier who believes it has been treated unlawfully can request conciliation, which brings together the parties and an independent conciliator appointed from a Commission list. Conciliation is non-binding but can resolve disputes without litigation.

In practice, attestation and conciliation are rarely used. Most disputes in utilities procurement are resolved through national courts or administrative tribunals, using the same interim measures, set-aside, and damages remedies that apply in the public sector.

The 2007 amendments aligned the standstill and ineffectiveness provisions closely with the public sector remedies framework, so the practical experience of challenging a utilities contract is now broadly similar to challenging a public sector contract.

Why it matters for bidders

If you supply to utilities (energy distributors, water companies, rail operators, postal services) and believe a procurement decision was unfair or unlawful, Directive 92/13/EEC is the legal basis for your right to review. The Directive ensures that the same minimum standards of rapid, effective, and impartial review apply in utilities markets as in the standard public sector.

For suppliers active in both markets, the key practical difference is that remedies for utilities must be pursued through mechanisms transposing Directive 92/13/EEC rather than Directive 89/665/EEC, though in many member states the same courts and tribunals handle both, and the procedural rules are substantially similar.

Example

A Dutch company bids for a maintenance services contract with a publicly owned water utility. It loses the award and requests a debrief, which reveals that the evaluation committee scored one technical criterion on a different scale than the published tender documentation required. The supplier brings a challenge before a Dutch administrative court, which applies the remedies framework transposing Directive 92/13/EEC. The court grants an interim suspension, preventing the utility from signing the contract, and schedules a full merits hearing.

Frequently Asked Questions

Is the conciliation procedure under Directive 92/13/EEC still available?

Yes, in principle. The European Commission maintains a list of conciliators and the procedure remains available under the Directive. However, it is very rarely used in practice because it is non-binding, time-consuming, and does not suspend the procurement procedure automatically. Most suppliers prefer to seek interim measures from a national court.

How does this Directive differ from the public sector remedies framework?

The substantive rights (interim measures, set-aside, damages, standstill, ineffectiveness) are the same. The practical differences are: Directive 92/13/EEC includes the attestation and conciliation mechanisms not available in the public sector framework, and it applies to utilities procurement specifically. Some member states use the same national courts and procedures for both; others have separate tracks.

Does the Directive apply to private utilities with exclusive rights?

Yes. Directive 2014/25/EU, and by extension the remedies framework in Directive 92/13/EEC, covers private entities that operate on the basis of special or exclusive rights in the relevant sectors. A privately owned gas distribution network operator that holds exclusive rights in a region is subject to the utilities procurement and remedies frameworks in the same way as a publicly owned utility.