William Timmermans and Tim Bruyninckx Contributed to the 2009 Belgian Public Procurement Yearbook

This contribution deals with the effects of the 2007 Braunschweig judgment of the European Court of Justice on judicial protection in public procurement law after the award of a public contract.

We discussed the effects of the 2007 Braunschweig judgment of the ECJ on judicial protection in public procurement law. Following this judgment, EU Member States are obliged to terminate public contracts if they were awarded contrary to European procurement rules. Indeed, the ECJ argued that the violation of the free movement of services continued for the complete term of the contract. In view of this case law, we examined whether or not rejected tenderers could obtain the same remedy before national courts, on the basis that free movement has a direct effect and that the remedy available to rejected tenderers before national courts should be effective.

Currently, the Belgian courts are reluctant to set aside contracts at the request of third parties, even if they were entered into following an award decision taken in breach of the European procurement rules. We argued that this “reluctance” will be difficult to uphold under current ECJ case law.