ECJ-jurisdiction affects § 107 Abs. 3 Nr. 1 GWB

Judgment of the Court of Justice of the European Union of 28 January 2010 in Case C-456/08 and C-406/08

The limitation period for bringing procurement challenges “promptly” is incompatible with the right to an effective remedy.

On 28 January 2010, the Court of Justice of the European Union (ECJ) delivered judgment in Case C-406/08, Uniplex (UK) Limited v NHS Business Services Authority. On a reference from the High Court in England and Wales, the ECJ ruled that the discretion of the Court to refuse to entertain challenges not brought “promptly” under Public Contracts Regulations 2006 (the Regulations) was inconsistent with the overriding requirement to ensure there is an effective system of remedies for unsuccessful contractors.

On the same day, the ECJ delivered judgment in a similar case in relation to the Irish rules on limitation period (Case C-456/08, European Commission v Ireland). This case concerned the equivalent provision in the Irish implementing rules, requiring that proceedings be brought “at the earliest opportunity and in any event within three months”. The ECJ adopted a similar approach, concluding with the statement, “it is not possible for the parties concerned to predict what the limitation period will be if this is left to the discretion of the competent court. It follows that a national provision providing for such a period does not ensure effective transposition of [the old Remedies Directive]”.

The judgment will not only have a significant impact on procurement litigation in the UK and Ireland. Even so, the German public procurement law will be concerned. Especially, a German court will be probably no longer able to dispense § 107 para. 3 No. 1 of the Law against Restraints on Competition (GWB).