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					Direction Juridique Groupe - JMA




                      Directive 2007/66/EC
               Review procedures concerning the
                award of contracts referred to in
                    Directive 2004/17/EC



                                                    April 4th, 2011
                                    New review procedures




                   The Directive 2007/66/EC of the European Parliament and of
                       the Council of 11 December 2007 amends the review
                            procedures concerning the public contracts

                 It amends :
                 - Directive 89/665/ECC concerning contracts on the scope of
                 2004/18
                 - Directive 92/13/ECC concerning contracts on the scope of
                 2004/17

                 Transposition in French law :
                 - Ordonnance n°2009-515 du 7 mai 2009
                 - Décret 2009-1456 du 27 novembre 2009


Direction Juridique Groupe
                                           New rules
                Concerning calling of competiton from December 1st, 2009 in France




                  Reinforcement of interlocutory procedures before the
                 conclusion of the contract

                  Creation of a new interlocutory procedure after the
                 conclusion of the contract

                 Which contracts ?
                 - Procurements on the scope of Directive 2004/17 set up from
                 December 1st, 2009 (notice publication).
                 -On the scope of French law, every public contracts, of any
                 value, even below the European contract thresholds

                 Infringements to be punished ?
                 Violation of the call for competition obligations.
Direction Juridique Groupe
                             Pre contractual Interlocutory procedure


    - Before the conclusion of the contract

    - Can be used by any person having or having had an interest in obtaining the contract and
    who has been or risks being harmed by an alleged infringement


                  Immediate suspension of the possibility to conclude the contract before
                 the review body has made a decision

                  Possible Penalties :

                 - Measures with aim of correcting the alleged infringement

                 - Suspension of any decisions related to the contract award procedure
                 - Daily penalties in case the contract entities disrespect the decision of the
                 review body

                                 EXCEPT if the probable negative consequences of such
                      measures could exceed their benefits (especially on public interests).
Direction Juridique Groupe
                             New : Contractual Interlocutory procedure



    - Within 6 months of the conclusion of the contract

    - Can be used by any person having or having had an interest in obtaining the
    contract and who has been or risks being harmed by an alleged infringement…
    … except if the person pursued a pre contractual remedies and the contracting
    authority enforced all the measures decided by the review body.


            Possible Penalties :
            - suspension of the contract until the review body has made a decision

            - ineffectiveness of the contract (automatic if the contract is awarded without
            prior publication or within the standstill period) even retroactive cancellation

            - shortening of the duration of the contract,

            - Financial penalties (French law : max 20 % of the contract value)


Direction Juridique Groupe
                   Information of unsuccessful candidates and tenderers



                 Information of unsuccessful candidates of tender as soon as
                           possible of the reasons of the rejection

            Information of unsuccessful tenders must provide :

            - the detailed reasons of the rejection,

            - the characteristics and the relative advantages of the selected
            tender, and the name of the awarded (except if such information
            is confidential),


            - standstill period of 16 days between the information of the tender
            and the conclusion of the contract.


Direction Juridique Groupe
                     Contract award notice publication in the OJEU



                                  Publication of a contrat award notice
                                             within 60 days
                                      of the award of the contract.




                        The contractual review can be used within 31 jours of the
                                publication of the contract award notice.

              If the contract award notice is not published, the contractual review
                  can be used within 6 months of the conclusion of the contract.




Direction Juridique Groupe
                                                 Summary diagram


                  Calling for competition notice



                             Qualitative selection
                                                           Information of unsuccessful candidates
                                                              (detailed reasons of the rejection )

                               Contract award
                                                         Information of unsuccessful tender (detailed reasons of the
            Possible Pre                                   rejection , characteristics and relative advantages of the
                                           16 days         selected tender , standstill period, ...) 16 days before the
         contractual review
                                                                           conclusion of te contract.
                     Conclusion of the contract


                               Contract award
                                   notice
      Possible contractual review within 31 day of the contract award notice
                                   publication
                         (Otherwise within 6 moths of the conclusion of the contract )
Direction Juridique Groupe
                 Contracts awarded without prior publication of a
                 notice or without prior call for competition
                 Contractual review may be used

                     Pre contractual review applies to contract awarded without pior calling of
                 competition (as provided in the article 40 of the 2004/17) as to the contracts awarded
                  without prior publication of a notice (listed in Annex XVII B of the 2004/17), until
                                           the conclusion of the contract.

                                              Contractual review may be avoided /
                               the period while the contractual review may be used can be reduced :


                                             The contractual review cannot be used if :
                             A notice for voluntary ex ante transparency is published 11 days before the
                                                     conclusion of the contract.

                                    The contract award notice must be published.
                 The contractual review may be used within 31 days of the contract award publication.

                    Otherwise, contractual review can be used within 6 mois of the conclusion of the
                                                       contract.


Direction Juridique Groupe
              Thanks for your attention




Direction Juridique Groupe

				
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