Case C-456/08 - Commission v. Ireland, Judgment of 28 January 2010

The Court of Justice of the European Union (CJEU) has 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.

Order 84A provides that "an application for the review of a decision to award or the award of a public contract shall be made at the earliest opportunity and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending such period").

The CJEU considered that Order 84A 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 that the fact that the Irish courts apply Order 84A to comply with EU law - i.e. they have applied the provision to interim decisions - and they have discretion to extend time, did not create the necessary clarity and precision to enable parties to be fully informed of their rights."

The judgment is in line with the opinion of AG Kokott handed down on 29 October 2009.

A new limitation period will be provided for in the new Remedies Regulations which are due to be signed into law imminently (the date for transposition was 20 December 2009). Order 84A is likewise being amended to provide for a new limitation period.

Please click here to access the judgement.

Case C-406/08 - Uniplex (UK) Ltd v. NHS Business Services Authority, Judgment of 28 January 2010

The CJEU also handed down its judgment in a preliminary reference from the High Court of England and Wales in relation to the date from which the period for bringing a procurement challenge should run.

Under UK law, proceedings must be "brought promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought."

Two questions were considered by the CJEU:-

  1. Does the Remedies Directive require that the limitation period starts to run from the date of the infringement of the procurement rules or from the date on which the claimant knew, or ought to have known, of that infringement? The CJEU responded by holding that the period for bringing proceedings should start to run from the date on which the claimant knew, or ought to have known, of that infringement.
  2. How is a national court to apply a requirement for proceedings to be brought "promptly" and any discretion for extending the limitation period? The CJEU responded by holding that EU law precluded a national provision which allows a national court to strike out proceedings for delay on the basis that those proceedings must be brought "promptly". In relation to the exercise of a discretion to extend time, the CJEU held that a Court must exercise that discretion to extend the limitation period in such a manner as to ensure that a claimant has a period equivalent to that which it would have had if the period provided for by national legislation had run from the date on which the claimant knew, or ought to have known, of the infringement of the procurement rules.  

In light of this judgment, contracting authorities will need to ensure that sufficient information is given to unsuccessful candidates and tenderers at the date of notifying the relevant decision to ensure that they know, or ought to know, of the alleged infringement at that time - otherwise, the time frame for initiating proceedings may be extended.

The judgment is in line with the opinion of AG Kokott handed down on 29 October 2009.