Directive 2007/66 And The Difficult Search For Balance In Judicial Protection Concerning Public Procurements
What kind of judicial protection has the EU developed in the sector of public procurements? What balance has EU law struck between the three main poles in this area – the public contracting authority, the successful tenderer and the excluded tenderers - as far as judicial protection is concerned? In order to tackle this question, three aspects of the regulatory framework established by Directive 07/66 are investigated: firstly, the protection provided in the period between the decision to award a contract and the conclusion of the contract in question; secondly, the protection granted after the conclusion of the contract; thirdly, the protection offered by the award of damages. The analysis shows that EU law lays down a flexible framework in which the balance between the various interests changes in relation to both the phase in which the dispute arises and the gravity of the infraction. At the same time, however, the new regulatory framework responds to the unitary rationale of protecting all the various interests in play after the decision to award. The new regulatory framework can be welcomed under several regards. Yet, it also presents some shadows, in particular as far as the regulatory discretion left to the States is concerned.