Defence and Security Procurement
Directive: Remedies
London 8 June 2011
Dr. Aris GEORGOPOULOS
Head of Research Unit on Defence and
Strategic Procurement, PPRG
Law School, University of Nottingham
Outline
- EU Institutional/Constitutional Context
- Enforcement
- Issues arising
- Conclusions
Aris Georgopoulos
THE EUROPEAN UNION
1st Pillar
Internal
Market
2nd Pillar
CFSP
CSDP
3rd Pillar
EU Institutional/Constitutional Context
• This differentiation in the intensity of integration refers primarily
to the following:
a) Decision making process- instruments
b) Role of the European Commission
c) Adjudication role of the Court of Justice of the EU
d) Role of the European Parliament
• Accordingly:
- Internal Market -> high degree of intensity of integration
(supranational)
- CFSP/CSDP -> lower intensity, limited role for Commission,
CJEU, Parliament (intergovernmental)
Aris Georgopoulos
Defence Procurement
Offsets
(defence)
Offsets
THE EUROPEAN UNION
(civilian)
1st Pillar
Internal
Market
2nd Pillar
CFSP
CSDP
3rd Pillar
Code of Conduct Defence
Procurement (EDA)
Defence Procurement
Directive
THE EUROPEAN UNION
1st Pillar
Internal
Market
Guidance on
Offsets???
2nd Pillar
3rd Pillar
CFSP
CSDP
Code of Conduct on
Offsets (EDA)
Enforcement
EU Level:
- Commission or MS instituted Proceedings before CJEU
- Corrective Mechanism (Art. 63 Dir)
Aris Georgopoulos
Enforcement
National Level:
- Administrative Remedies:
 If MS require contractor to seek review from CA first
→ must provide automatic suspension of possibility to
conclude the contract (Art 55 (6) Dir)
Aris Georgopoulos
Enforcement
National Level:
- Legal remedies/mechanisms:
 Interim Relief and other measures (Art 56 Dir)
 Set aside (Art 56 Dir)
 Damages (Art 56 Dir)
Aris Georgopoulos
Enforcement
National Level:
- Legal remedies/mechanisms:
 Stand still period (Art 57 Dir)
 Ineffectiveness (Art.60 Dir)
 Alternative Penalties (Art. 61 Dir)
Aris Georgopoulos
Issues arising
- Can MSs limit the availability of these remedies only to
EU based economic operators?
- Can these remedies provide adequate enforcement?
- Can national Courts review the use of Article 346
TFEU?
Aris Georgopoulos
Conclusions
- Remedies in defence and security procurement are
meant to provide the “teeth” of the new regime.
- The new framework uses the complete panoply of the
acquis in the area of procurement remedies
- Its success will depend upon:
a) The willingness of contractors to use these remedies
(Country specific at least at the beginning)
b) Separation of powers and judicial activism – Country
specific (see Germany)
Aris Georgopoulos
Thank You
Dr Aris GEORGOPOULOS
School of Law
University of Nottingham
Public Procurement Research Group
Nottingham NG7 2RD
UK
Email: aris.georgopoulos@nottingham.ac.uk
Webpage: http://www.nottingham.ac.uk/Law/Staff-Lookup/aris.georgopoulos
PPRG/DSPUnit: http://www.nottingham.ac.uk/pprg/units/defstratprocurement.aspx