Yearbook of European Law - Vol. 10

By Francis Geoffrey Jacobs | Go to book overview

National Remedies and Equal Access to Public Procurement*

STEPHEN WEATHERILL


I. Introduction

The purpose of this article is to discuss some of the problems faced by litigants wishing to enforce Community law rights before domestic courts and to assess some possible solutions. The rights which are the focus of this article arise in the area of public procurement: the courts under scrutiny are English. However, it is submitted that on both counts broader issues are raised.

First, it is shown that domestic enforcement of Community law rights is an integral part of the Community law system. This is uncontroversial. It will be shown that this system has significant advantages for the efficient protection and advancement of Community law. Second, it is argued that Community law has evolved only part of the way to establishing a truly efficient stratum of enforcement at national level. The principle of direct effect ensures that rights may be pleaded before national courts, but the underdevelopment of Community law relating to national remedies represents a serious curb on the efficiency gains already observed. These problems are illustrated by a lengthy examination of the response of English law to the institutional and procedural implication of the principle of direct effect.

Third, solutions. How can one improve efficiency in this area? Three actors are identified. National courts may be able to respond more fluently. The Commission has a role. Its work with Article 169 may assist the private litigant. It may encourage domestic enforcement. Beyond this, it may be able to supply more tangible support to the individual. Public procurement is a well chosen example, for here the Commission has sought to improve the individual's situation through negotiated settlements which may include the payment of compensation. It has also recently enjoyed success in securing the passage of legislation harmonising national remedies in the field of public procurement. Finally, the role of the European Court in clarifying the consequences of its carefully nurtured principle of direct effect deserves consideration.

The article will conclude by speculating on the future evolution of this area

____________________
*
© Stephen Weatherill, 1990. Department of Law, University of Nottingham. The author accepts sole responsibility for all opinions expressed and errors made in this article, but is grateful for the constructive criticism of earlier drafts provided by Richard Bragg, Hazel Carty, Colin Crawford, Nigel Gravells Catherine Redgwell, and Gillian White.

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