In its judgment of 28 January 2010 in Commission v. Ireland (Case C-456/08), the Court of Justice of the European Union (CJEU) held that Order 84A of the Rules of the Superior Courts which sets out the procedure and timeframe for initiating a challenge to a procurement procedure is contrary to EU law. The CJEU considered that Order 84A (which sets out the time limits for making a review of a decision to award or the award of a public contract) created legal uncertainty in two respects:
- there is uncertainty as to which decision can be challenged i.e. Order 84A only refers to a "decision to award" or "award of a public contract" - there is no mention of interim decisions (e.g. decisions in relation to pre-qualification, interim decisions made during a tender procedure, etc.); and
- there is uncertainty as to the determination of the limitation period i.e. as Order 84A refers to both "the earliest opportunity" and to "within 3 months" it is plausible that a case could be struck out on grounds of delay even if initiated within 3 months.
The CJEU held the Irish courts application of Order 84A failed to create the necessary clarity and precision to enable parties to be fully informed of their rights. A new limitation period has been provided for in the new Remedies Regulations which takes into account the judgment of the CJEU. Order 84A is likewise being amended to provide for a new limitation period.