Directive 2009/81/EC of the European Parliament and of the CouncilShow full title

Article 60 Ineffectiveness

1. Member States shall ensure that a contract is considered ineffective by a review body independent of the contracting authority/entity or that its ineffectiveness is the result of a decision of such a review body in any of the following cases:

(a) where the contracting authority/entity has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with this Directive;

(b) in the case of an infringement of Article 55(6), Article 56(3) or Article 57(2), where this infringement has deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with another infringement of Titles I or II, if that infringement has affected the chances of the tenderer applying for a review to obtain the contract;

(c) in the cases referred to in the second subparagraph of Article 58(c), where Member States have invoked the derogation from the standstill period for contracts based on a framework agreement.

2. The consequences of a contract being considered ineffective shall be provided for by national law. National law may provide for the retroactive cancellation of all contractual obligations or limit the scope of the cancellation to those obligations which still have to be performed. In the latter case, Member States shall provide for the application of alternative penalties within the meaning of Article 61(2).

3. Member States may provide that the review body independent of the contracting authority/entity may not consider a contract ineffective, even though it has been awarded illegally on the grounds mentioned in paragraph 1, if the review body finds, after having examined all relevant aspects, that overriding reasons relating to a general interest, first and foremost in connection with defence and/or security interests, require that the effects of the contract should be maintained.

Economic interests in the effectiveness of the contract may only be considered as overriding reasons relating to a general interest within the meaning of the first subparagraph, if ineffectiveness would lead to disproportionate consequences.

However, economic interests directly linked to the contract concerned shall not constitute overriding reasons relating to a general interest within the meaning of the first subparagraph. Economic interests directly linked to the contract include, inter alia, the costs resulting from the delay in the execution of the contract, the costs resulting from the launching of a new procurement procedure, the costs resulting from the change of the economic operator performing the contract and the costs of legal obligations resulting from the ineffectiveness.

In any event, a contract may not be considered ineffective if the consequences of this ineffectiveness would seriously endanger the very existence of a wider defence or security programme which is essential for a Member State’s security interests.

In all the abovementioned cases, Member States shall provide for alternative penalties within the meaning of Article 61(2), which shall be applied instead.

4. Member States shall provide that paragraph 1(a) does not apply where:

• the contracting authority/entity considers that the award of a contract without prior publication of a contract notice in the Official Journal of the European Union is permissible in accordance with this Directive,

• the contracting authority/entity has published in the Official Journal of the European Union a notice as described in Article 64 expressing its intention to conclude the contract, and,

• the contract has not been concluded before the expiry of a period of at least 10 calendar days with effect from the day following the date of the publication of this notice,

5. Member States shall provide that paragraph 1(c) does not apply where:

• the contracting authority/entity considers that the award of a contract is in accordance with the second indent of the second subparagraph of Article 29(4),

• the contracting authority/entity has sent a contract award decision, together with a summary of reasons as referred to in the first indent of the fourth subparagraph of Article 57(2), to the tenderers concerned, and,

• the contract has not been concluded before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers concerned if fax or electronic means are used or, if other means of communications are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.