Court Confirms Advance Effects Of The New Procurement Directives

The effects of the "Effet utile" principle

As sufficiently known by practitioners of public procurement law, the transition pe-riod for the new Directives on public procurement law 2014/23/EU, 2014/24/EU and 2014/25/EU ("the Directives"), which entered into force in March 2014, will predominantly elapse on 18 April 2016. As the purpose of the transition period is to provide the Member States with sufficient time to adjust the national rules to the new directives, Member States cannot be accused of not transposing the Directives before the transposition deadline has expired (C-212/04, para 102). However, it follows from the "effet utile" principle that during the transposition period, Member States must refrain from taking any measures liable to seriously compromise the result prescribed (C-129/06). Moreover when national courts apply domestic law, they are bound to interpret it, as far as possible, in the light of the wording and the purpose of the directive (joined cases C-397/01 to C403/01). In other words - even if the transposition law has not expired, national courts shall interpret the national law in conformity with the community law. However, taking into account the general principles of law, particularly those of legal certainty and non-retroactivity, this obligation cannot serve as basis for an interpretation of the applicable national law contra legend (C-212/04).

From the principles outlined above, it can be deduced that a provision of a directive may have effects prior to the expiration of the transposition date if

the provision at hand is sufficiently precise and clear; the directive does not leave the Member States any leeway in implementing the respective provision and thus obliges the Member State to transpose the specific provision; and the applicable national legislation does not explicitly preclude the respective provision of the directive. The decision of the LVwG

The fact that certain provisions of the new Directives have advance effects has re-cently been confirmed by the Administrative Court of Lower Austria ("LVwG ") and the Higher Regional Court ("Oberlandesgericht") of Düsseldorf, Germany.

The case in question in Austria concerned the award of a service contract for mo-bile communication services. The LVwG concluded in its decision of 14 May 2015 (LVwG-AV-194/002-2015) that art 26 (4) of the new public sector Directive stipu-lating the grounds for choosing the negotiated procedure with a notice ("competitive...