Judgment
Title: | OCS One Complete Solutions Limited -v- Dublin Airport Authority Plc |
Neutral Citation: | [2015] IESC 6 |
Supreme Court Record Number: | 274/14 |
High Court Record Number: | 2014 177JR & 2014 52 COM |
Date of Delivery: | 01/30/2015 |
Court: | Supreme Court |
Composition of Court: | Clarke J., Laffoy J., Dunne J. |
Judgment by: | Clarke J. |
Status: | Approved |
Details: | Dismiss plus allow Notice to Vary |
| Judgments by | Link to Judgment | Concurring | Clarke J. | | Laffoy J., Dunne J. | |
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THE SUPREME COURT[Appeal No: 274/14]
Clarke J.
Laffoy J.
Dunne J.
OCS One Complete Solutions Limited
Applicant/Respondent
and
Dublin Airport Authority plc
Respondent/Appellant
and
Maybin Support Services (Ireland) Limited t/a Momentum Support
Notice Party
Judgment of Mr. Justice Clarke delivered the 30th January, 2015.
1. Introduction
1.1 European Union rules on public procurement represent an important part of the law underlying the single market and are designed to establish a level playing field across the Union in respect of public contracts. The regime under European law has evolved over time not least with a view to ensuring that there are effective remedies available to those who may establish a breach of the obligations of public authorities in the procurement process. The underlying proceedings in this case involve an allegation of such a breach.
1.2 The applicant/respondent ("OCS") has held a contract to supply queue management, lounge management, cleaning, pest control and VIP porterage services at Dublin airport since 2007. The respondent/ appellant ("DAA") is the statutory authority which operates Dublin airport. In anticipation of the expiry of the current contract, a competition for a new contract relating to the provision of those services began in May 2012 and resulted in a decision on the part of the DAA in February, 2014 to award the contract to the notice party ("Maybin"). OCS contends that the award procedure is flawed. It is in the context of those allegations that these judicial review proceedings were commenced on 21st March, 2014 against the DAA, with Maybin as a notice party, challenging the decision to award the contract to Maybin. It is said by OCS that the existence of these proceedings automatically precluded the conclusion of the contract between DAA and Maybin.
1.3 However, the issue with which this Court is currently concerned does not directly involve the merits or otherwise of the substantive challenge brought by OCS. Rather the issues arise out of an application in these proceedings brought before the High Court by DAA on 1st May, 2014 which sought an order lifting or discharging any applicable suspension of the procedure for the award of the contract, or alternatively, such an order in the absence of an undertaking as to damages by OCS in favour of DAA. The application was concerned, in substance, with whether the DAA was entitled to enter into a contract with Maybin notwithstanding the existence of these proceedings and in the absence of any application having been brought by OCS to prevent the DAA from so doing.
1.4 I will turn shortly to the precise issues which the High Court had to consider. However, for present purposes it is sufficient simply to note that the end result of the application was that it was determined by Barrett J. that the DAA could not enter into a contract with Maybin pending the finalisation of the substantive proceedings. (See OCS One Complete Solution Limited v. Dublin Airport Authority [2014] IEHC 306). The DAA has appealed to this Court from that decision
1.5 Before turning to the specific issues which arose before Barrett J. and which were the subject of the appeal to this Court, it is important to record that this Court has already ruled on the appeal and this judgment is, therefore, solely for the purposes of giving reasons. It should also be recorded that counsel for Maybin appeared at the commencement of the appeal but only to indicate that Maybin did not intend to participate. However, in order to fully understand the import of the ruling of this Court, it is necessary to understand the issues which were before Barrett J. in the High Court and before this Court on appeal. I, therefore, turn to the issues.
2. The Issues
2.1 In substance there were three main sets of questions before Barrett J. The first was as to the legal effect of the existence of the challenge brought by OCS and the extent to which the existence of that challenge operated as an automatic barrier (without court order) to the DAA entering into a contract with Maybin. One of the fundamental provisions of European Union law in the public procurement field is the existence of a standstill period which prevents a public authority from concluding a contract, which results from a public procurement process governed by European law, for a period of time designed to allow any relevant parties to consider whether they wish to mount a challenge to the award of the contract concerned. There is no doubt or controversy but that the DAA was precluded from entering into a contract with Maybin during that period.
2.2 However, both before Barrett J. and before this Court four further connected questions arose. First, whether, in the light of the relevant law, a party who, as OCS did, commences their proceedings after the standstill period has expired has the benefit of any automatic freezing of the entitlement of the contracting authority to conclude a relevant contract. In substance the case made by the DAA on this point was that a party who challenged a decision to award a contract outside the standstill period did not have the benefit of any automatic freezing.
2.3 Second, the DAA argued, in the alternative, either that a challenger, such as OCS, did not have available to it any entitlement to seek to restrain the DAA from entering into a contract where proceedings were commenced outside the standstill period or that the DAA could only be restrained from entering into a contract with Maybin if a specific application seeking a restraining order was successfully made by OCS to the Court. On either of those bases it was suggested that, on the facts of this case, there was no legal basis on which the DAA could be said to be prevented from entering into a contract with Maybin. This challenge was brought outside the standstill period and there had been no specific application by OCS to restrain the conclusion of a contract between OCS and Maybin. OCS relied on its assertion that there was an automatic preclusion as a result of it bringing the challenge. Barrett J. found in favour of OCS on those points and held that, prima facie, the existence of the proceedings in the circumstances of this case amounted to a barrier to the conclusion of a contract between the DAA and Maybin until the proceedings had been determined.
2.4 The third issue was as to whether the Court has a jurisdiction to permit the DAA to conclude the contract concerned notwithstanding the prima facie position identified in response to the earlier questions. On this point OCS argued that the relevant regime under European Union law, as transposed by the relevant Irish implementing measures, did not permit an application to, as it were, absolve the contracting authority from the prohibition from concluding a contract pending the final determination of the substantive proceedings. DAA argued to the contrary.
2.5 On that issue Barrett J. held in favour of the DAA and determined, contrary to the submissions of OCS, that such a jurisdiction did exist. It is important to record that OCS served a notice to vary in respect of that aspect of the judgment of Barrett J.
2.6 Fourth and finally, Barrett J. had to consider the criteria for the exercise of the jurisdiction (to permit a contract to be concluded) which he had identified and apply those criteria to the facts of this case. In the circumstances Barrett J. determined that the application of what he considered to be the appropriate criteria led to the conclusion that the contract should not, in the circumstances of this case, be concluded pending the outcome of the proceedings.
2.7 The appeal to this Court was heard on 21st July, 2014. Each of the issues which I have already identified were canvassed on the appeal. Having regard to the urgency of the matter the Court indicated that it would give a ruling in early course but that it was likely that the reasons underlying that ruling would be reserved until a subsequent occasion. On the 31st July, 2014 the Court delivered its ruling which, in substance, upheld the ultimate conclusion of Barrett J. but did so on a somewhat different basis and, in particular, found in favour of OCS on its notice to vary.
3. The Ruling
3.1 The ruling was in the following terms:-
3.2 As is clear from that ruling the Court reached two substantive conclusions. The Court held, in agreement with Barrett J., that, once an application is made to a court under article 8(1)(b) of the Irish implementing regulations (being the European Communities (Award of Contracts by Utility Undertakings) (Review Procedures) Regulation 2010 ("the Regulation")), the contracting entity (the DAA in this case) is precluded from concluding the contract in question notwithstanding the fact that the relevant application was commenced after the so-called standstill period provided for in the Regulation had expired. The Court also determined that a specific application seeking a court order to prevent the conclusion of such a contract after the expiry of the standstill period was unnecessary for, in the Court's view, the preclusion which operated to prevent the DAA from concluding the relevant contract arose as a matter of law simply by virtue of the existence of proceedings under article 8(1)(b).
3.3 However, contrary to the view of Barrett J., this Court came to the conclusion that the Regulation does not give to the courts a jurisdiction to permit the contracting entity to conclude the relevant contract prior to the final determination of the substantive application for review. On that basis the Court allowed the notice to vary.
3.4 Finally, in the light of that second decision, the Court expressed the view that the issue of criteria did not arise, for there was no jurisdiction to grant the application in the first place, and likewise held that it was both unnecessary and inappropriate to address the merits of the outcome of any such application in this case given that there was no jurisdiction to entertain the application at all.
3.5 It, therefore, follows that the Court did not enter into a consideration of the merits or of the criteria which would apply in the event that there were a jurisdiction to entertain an application to permit a contract to go ahead. The Court confined itself to determining the legal issues which arose as to the proper interpretation of the Regulation in the light of relevant European Union law. Having concluded that there was an automatic suspension on the entitlement of a contracting entity to award a contract until the substantive proceedings were determined (and that there was no jurisdiction to depart from that position) the Court felt it inappropriate to address any wider issues. This judgment is, therefore, concerned solely with the legal issues which resulted in the findings noted in the ruling of the Court at paras. 2(a) and (b).
3.6 In order to more fully understand the precise issues which arose and which led to that ruling it is necessary to review the relevant provisions of both European Union and Irish implementing law and, for reasons which I hope will become apparent, to also briefly touch on the equivalent United Kingdom implementing measures. I, therefore, turn to the legal framework.
4 The Legal Framework
4.1 There are two public procurement regimes under European Law which attempt to coordinate the laws, regulations and administrative procedures of member states relating to procurement procedures. One such regime is of general application to public sector bodies (Directive 89/665/EEC) while the other is applicable to utilities, specifically those operating in water, energy, transport and telecommunications sectors (Directive 92/13/EEC).
4.2 Directive 92/13/EEC was introduced in relation to utilities in order to provide more flexibility in tendering procedures applicable to such bodies, reflecting the more commercial remit of the entities it covers. This is the Directive which applies to the procurement process in the current case.
4.3 However, the material issues which arise on this appeal are concerned not with the procurement process itself but rather with the review procedures relating to the award of the relevant public contract. In this regard, Directive 2007/66/EC ("the Remedies Directive") amended both Directive 89/665/EEC and Directive 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts. The Remedies Directive inserted new Articles 2(3) in Directives 89/665/EEC and 92/13/EEC, which insertions are almost identically worded. In the course of his judgment, Barrett J. mistakenly referred to Article 2(3) of Directive 89/665/EEC, as inserted by Article 1 of the Remedies Directive, when in fact the operative legislation for the purposes of this case is the almost identically worded Article 2(3) of Directive 92/13/EEC, as inserted by Article 2 of the Remedies Directive. This Article states:-
“When a body of first instance, which is independent of the contracting entity, reviews a contract award decision, Member States shall ensure that the contracting entity cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 2a(2) and Article 2d(4) and (5).”
4.4 As noted by Barrett J. at para. 26 of his judgment, one of the predominant purposes of the Remedies Directive was to strengthen pre-contractual remedies for breaches of procurement law. This conclusion is supported by the European Commission’s Impact Assessment report which was annexed to its “Proposal for a Directive to amend Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts” (COM (2006) 195). The report (at p.20) acknowledges the weaknesses in the regime which predated the Remedies Directive, including the inability of the wronged party “to prevent a contract being signed before a complaint has been lodged or examined”, whereby the wronged party was forced either to bring an action for damages or to simply accept the result. The report further states:-
“The “race to signature” further exploits the weaknesses inherent in the damages system, as it is harder to bring post-contractual remedies actions and the chances of having an award decision altered are quite low.”
4.5 It is evident from the recitals to the Remedies Directive that those tasked with formulating the legislation had similar concerns. Recital 3 states that consultations with interested parties and a consideration of the case law of the European Court of Justice (“ECJ”) had revealed weaknesses in the review mechanisms in Member States which “did not always make it possible to ensure compliance with Community law, especially at a time when infringements can still be corrected”. The absence of a period allowing an effective review between the decision to award a contract and the conclusion of that contract was identified as a particular weakness (see recital 4 which is in the following terms):-
“This sometimes results in contracting authorities and contracting entities who wish to make irreversible the consequences of the disputed award decision proceeding very quickly to the signature of the contract. In order to remedy this weakness […] it is necessary to provide for a minimum standstill period during which the conclusion of the contract in question is suspended, irrespective of whether conclusion occurs at the time of signature of the contract or not.”
4.6 In order to address these deficiencies in Community law, the Remedies Directive provides that Article 2a be inserted into Directive 92/13/EEC. This article provides that Member states must ensure that persons referred to in Article 1(3) of Directive 92/13/EEC have sufficient time for effective review of the contract award decisions taken by contracting entities, by adopting provisions “respecting the minimum conditions” set out in Article 2a(2) and Article 2c. The review procedures, under the terms of Article 1(3), as inserted, must be available “at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement”.
4.7 OCS has brought its application for review of the award decision pursuant to the Regulation which was made under s.3 of the European Communities Act 1972 for the purpose of giving effect to Council Directive 92/13/EEC, as amended by the Remedies Directive. Regulation 5 of the Regulation provides for a standstill period, during which a contracting entity may not conclude a reviewable contract. Regulation 5(4) states that the duration of the standstill period must be at least 14 calendar days (if the notice to unsuccessful tenderers under Regulation 6 is sent by fax or electronic means) or 16 calendar days (if the notice is sent by any other means). Regulation 5(3) provides that the standstill period for a contract begins on the day after the day on which each tenderer and candidate concerned is sent a notice, in accordance with paragraphs (2) and (3) of Regulation 6, of the outcome of his or her tender or application.
4.8 Many of the points of contention in this case focus on Regulation 8 of the Regulation, which concerns applications to the High Court by unsuccessful tenderers or candidates. Regulations 8(1), (2) and (3) state:-
“8. (1) An eligible person may apply to the Court—
(a) for interlocutory orders with the aim of correcting an alleged infringement or preventing further damage to an eligible person’s interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of the contract concerned or the implementation of any decision taken by the contracting entity,
(b) for review of the contracting entity’s decision to award the contract to a particular tenderer or candidate.
(2) If a person applies to the Court under paragraph (1), the contracting entity shall not conclude the contract until—
(a) the Court has determined the matter, or
(b) the Court gives leave to lift any suspension of a procedure, or
(c) the proceedings are discontinued or otherwise disposed of.
(3) A person who is an eligible person in relation to a reviewable contract that has been concluded may apply to the court for a declaration that the contract is ineffective.”
4.9 It is important to note that, for the purposes of the Regulation, an eligible person is defined, by Regulation 4, as a person who:-
"(a) has, or has had, an interest in obtaining the reviewable contract, and
(b) alleges that he or she has been harmed, or is at risk of being harmed, by an infringement, in relation to that reviewable contract, of Community law in the field of public procurement, or of a law of the State transposing that law."
4.10 Two points should be noted. First, the definition of eligible person and, therefore, the definition of persons who are entitled to apply to court under Regulation 8 confines that entitlement to the contenders for the relevant contract or those who claim harm as a result of a breach of public procurement law in respect of such a contract. The definition does not, of course, include the contracting entity. Second, it is clear that it is at least possible, by virtue of the provisions of Regulation 8(3), to seek a declaration that a contract already entered into is ineffective. The precise circumstances in which it may be either possible or appropriate to grant such a declaration have not yet been authoritatively determined.
4.11 In the written submissions and in the course of the oral hearing the DAA placed reliance on the equivalent legal framework in the United Kingdom, as well as case law from the courts of England and Wales and the courts of Northern Ireland. In the case law cited by the DAA, the principles enunciated in American Cyanamid Co. v. Ethicon [1975] A.C. 396 were adopted in the context of applications to lift the automatic suspension which is provided for by the regulatory regime in those jurisdictions. The following case law from England and Wales was referred to by the DAA: Indigo Services (UK) Ltd. v. Colchester Institute [2010] EWHC 3237, Exel Europe Limited v. University Hospitals Coventry and Warwickshire NHS Trust [2010] EWHC 3332, Halo Trust v. Secretary of State for International Development [2011] EWHC 87, Metropolitan Resources North West Limited v. Secretary of State for Home Department [2011] EWHC 1186 and Newcastle Upon Tyne Hospital NHS Foundation Trust v. Newcastle Primary Care Trust [2012] EWHC 2093.
4.12 In Northern Ireland, the courts have adopted the American Cyanamid principles in a number of cases referred to by the DAA, including First4Skills Limited v. Department for Employment & Learning [2011] NIQB 59 and Lowry Brothers Ltd. v. Northern Ireland Water Ltd. (No. 2) [2013] NIQB 23. However, all of those cases are concerned with the U.K. regulations pertaining to public procurement, specifically the Public Contracts Regulations 2006, as amended by the Public Contracts (Amendment) Regulations 2009. Regulations 47H(2) and (3) of the U.K. regulations, in the words of Barrett J., “effectively enjoin the application of the American Cyanamid principles by the UK courts”. It follows that the regulations in place in the United Kingdom are of limited value in the present proceedings for there is no equivalent provision in the Regulation which requires the Irish courts, in terms, to apply principles equivalent to those utilised in interlocutory injunction proceedings in the public procurement field. The U.K. authorities presented to the Court must be seen in that context.
4.13 Obviously both of the issues which this Court determined involved the proper interpretation of the Regulation construed, in accordance with the fundamental principles of European law, insofar as possible in a manner designed to ensure that those implementing measures conform with the directives concerned. Before going on to the specific issues of interpretation which arose on this appeal it is important to say something briefly about the proper approach to the construction of the Regulation in its European Union context.
5 The Regulation, Approach to Construction.
5.1 It is, of course, the Regulation which governs the law in this jurisdiction. It is equally clear, however, that the Irish courts, in interpreting the Regulation, are required, as a matter of European Union law, to attempt to construe the Regulation in conformity with the obligations on the State arising from the relevant directives and in a manner designed to achieve the result pursued by the Directives. The principle of harmonious interpretation was developed by the ECJ in Case 14/83 Von Colson and Kamman v. Land Nordhein-Westfalen [1984] ECR 1891 in which the Court stated:-
5.2 In Case C- 106/89 Marleasing SA v. Law Comercial Internacionale de Alimentacion SA [1990] ECR I -4135 the ECJ held that, when applying national law, whether the provisions were adopted before or after the directive at issue, the national court is required to interpret the provisions of national law “as far as possible” in the light of the purpose of the directive in order to achieve the result pursued by the directive. In Marleasing there was no domestic legislation implementing the directive, and the ECJ found that in those circumstances it was necessary for the national court to harmoniously interpret domestic law which predated the directive. Additionally, in Cases C- 397-403/1 Pfeiffer and others v. Deutsches Rotes Kreuz [2004] ECR I-8835, the ECJ ruled that “the principle of interpretation in conformity with Community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law” to ensure that the directive is fully effective.
5.3 It is, however, important to recognise that there may be circumstances where, on a proper interpretation of a directive, a Member State is left with some degree of discretion or margin of appreciation as to the manner in which it may implement its obligations under the relevant directive. In accordance with European Union law a court should, unless it is impossible to do otherwise, ensure that the interpretation of domestic implementing law is not inconsistent with the directive. However, where the relevant directive is not mandatory in respect of any particular aspect of a regime then it will be a matter of construing national law (including implementing measures) to determine the applicable legal position subject only to the overriding consideration that the result of any interpretation of national law should, to the greatest extent possible, leave national law in conformity with the requirements of the directive.
5.4 Thus the relevant directives in this case are potentially of importance in construing the Regulation but only to the extent that it might be said that any particular interpretation of the Regulation would leave the law in this jurisdiction in a state where it was inconsistent with the obligations imposed by the directives.
5.5 It follows that, in respect of each of the issues which arise on this appeal, this Court was required to attempt to construe the Regulation, but in so doing was also required to construe the relevant directives for the purposes of ensuring, to the greatest extent possible, that any interpretation of the Regulation was not in breach of the obligations imposed by the Directive. With those broad comments in mind I turn to the first set of issues which concern the question of whether there is an automatic suspension in effect notwithstanding the fact that these proceedings were commenced after the standstill period had expired. On that point I turn first to the judgment of the High Court and why the DAA argue that it is incorrect.
6 Is there an Automatic Suspension? - The High Court Judgment and the Submissions
6.1 Having noted that there was no dispute but that OCS was an eligible person for the purposes of the Regulation and had made an application under Regulation 8(1) of same, Barrett J. found that it was "clear from Regulation 8(2) that a suspension necessarily commences immediately upon a Regulation 8(1) application being made". There is no more detailed analysis of that question to be found in the judgment. In substance Barrett J. came to the view that the wording of the Regulation was clear and imposed a prohibition as soon as a relevant application for review was commenced. In reality, as Barrett J. noted, in his view the real question was not so much whether the prohibition arose automatically from the making of an application but rather how long that prohibition should last. That latter question is, of course, the second issue with which the Court was concerned.
6.2 The DAA, however, submitted on this appeal that Barrett J. was wrong to conclude that an automatic suspension arose simply by the issuing of an application under Regulation 8(1). Rather, as has already been noted, the DAA suggested that, in order for a suspension to continue beyond the standstill period, it was necessary that there be a specific application for an interlocutory order providing for the continuance of the suspension beyond the end of the standstill period and further questioned whether it was permissible to seek such an order when the original application or proceedings under Regulation 8(1) were brought outside of the standstill period. It being clear that no application for an interlocutory order had been made in these proceedings it followed that, if the DAA's argument were correct, there could be no prohibition in this case for the standstill period has long since expired and, in any event, the originating application under Regulation 8(1) was brought outside the standstill period.
6.3 In support of their contention the DAA suggested that the concept of a "minimum" standstill period, as described in the various measures, was inconsistent with the view that the contracting entity could be placed under a prohibition automatically arising from the issuing of an application under Regulation 8(1) and without the specific intervention of a court. The DAA argued that no principle of construction properly led to the view that the Regulation gave rise to an automatic and continuing suspension of the power to conclude a contract once an application for review was issued.
6.4 In addition, and placing reliance on the provisions of Regulation 8(1) which allows for interlocutory orders (see sub regulation (a)), the DAA argued that the proper interpretation of the Regulation as a whole meant that the form of automatic suspension which arises when an application under Regulation 8(1) is made only applies for the standstill period and thereafter, and in the absence of a court order, only where an application for an interlocutory order has been made. The DAA argued that the interpretation which it sought to place on the Regulation was entirely consistent with the Remedies Directive.
6.5 In substance OCS argued in reply that the issue of interpretation which arises under this heading was straightforward. It was suggested that the clear wording of Regulation 8(2) imposes an automatic suspension provided that a proper application under Regulation 8(1) has been made. It was accepted on behalf of OCS that a party who allows the standstill period to elapse before bringing an application under Regulation 8(1) takes a risk. It was accepted that as soon as the standstill period has run out, and before any application under Regulation 8(1) has been commenced, the contracting authority or entity is free to enter into binding contractual arrangements. If that happens there may well, OCS accepted, be adverse consequences for a party who subsequently challenges the award process. But such consequences flow from the challenger's own delay in bringing an application under Regulation 8(1). OCS argued that there was nothing inconsistent either with the Regulation or with the Remedies Directive or, indeed, with common sense in a regime which provides for an automatic suspension during the standstill period and a subsequent automatic suspension provided an application under Regulation 8(1) is brought but with an intervening period where the contracting entity is free to conclude a contract because of the expiry of the standstill period and the absence, due to an omission or delay on the part of the challenger, of an application under Regulation 8(1).
6.6 OCS in particular drew attention to the fact that the prohibition or suspension created by Regulation 8(2) is not in any way stated to be confined to cases where there is pending an application under Regulation 8(1)(a) (being cases where an interlocutory application has been brought) but rather extends also to cases where an application, as here, has been brought under Regulation 8(1)(b), in which the decision to award itself is challenged.
7. Discussion
7.1 I have already noted that the Court upheld the view of Barrett J. on this issue. I supported the view of the Court because I was persuaded that OCS was correct to argue that the clear wording of Regulation 8(2) imposes an automatic suspension provided that there is an application in being under Regulation 8(1) and where the Court has not, in accordance with Regulation 8(2)(b), given leave "to lift any suspension of a procedure". Regulations 8(2)(a) and 8(2)(c) involve cases where the application under Regulation 8(1) is no longer in being by virtue either of having been determined, discontinued or otherwise disposed of. It will, of course, be necessary to come back to the meaning of Regulation 8(2)(b) in the context of the second issue.
7.2 Having been satisfied that the wording of Regulation 8(2) seems straightforward, it was necessary to address the specific issues of interpretation relied on by the DAA. It is true that both the Regulation and the Remedies Directive speak of a minimum standstill period. However, it seems to me that nothing, insofar as this issue is concerned, turns on the use of the word "minimum". That term simply signifies that every legitimately interested party is to be given a minimum period in which they can be assured that their interests will not be affected by a contract being entered into. A Member State could, of course, provide for a longer period. It does not seem to me that the use of the term "minimum" in that context affects the question of whether an automatic suspension comes into force when an application under Regulation 8(1) is made.
7.3 There are two separate concepts at play. First, there is an automatic suspension for the standstill period. That applies irrespective of whether anyone has sought to invoke review procedures. Second, and separately, there is an automatic suspension that arises when someone seeks to invoke the review procedures by bringing an application under Regulation 8(1). Subject only to the potential challenger running the risk already identified, if allowing the standstill period to elapse prior to bringing its challenge, I was not persuaded that it makes any difference, for the purposes of the Regulation as a whole, whether the challenge brought by means of an application under Regulation 8(1) is commenced either within or outwith the standstill period.
7.4 Obviously any such challenge is subject to a limitation period. Regulation 7(2) provides that “an application referred to in subparagraph (a) or (b) of Regulation 8(1) shall be made within 30 calendar days after the applicant was notified of the decision, or knew or ought to have known of the infringement alleged in the application”. But subject to the application being brought within that limitation period I was not satisfied that its suspensory effect is in any way dependent on whether it is brought while the standstill period is still in being.
7.5 Regulation 8(1) contemplates two types of applications. The first, under Regulation 8(1)(a), involves what are described as interlocutory orders. It will be necessary to consider the scope of such orders when dealing with the second issue which arose on this appeal. Regulation 8(1)(b) involves a review of the substantive decision to award. There is nothing in Regulation 8(2) to suggest that the suspensory effect of the bringing of an application under Regulation 8(1) is confined to applications under Regulation 8(1)(a). Nor is there, in my view, anything in the scheme of either the Regulation or the Remedies Directives which would require that the suspensory effect which is clear from Regulation 8(2) should only apply in cases where the challenger has brought an application for an interlocutory order under Regulation 8(1)(a). Rather the scheme seems clear. Once there is in being a challenge to the decision to award (brought within the limitation period) then there is an application in being under Regulation 8(1) and it follows that there is a suspension of the ability to conclude the relevant contract unless Regulation 8(2)(b) is met and it is possible for the Court to lift any "suspension of a procedure". I use the phrase "possible to" in the last sentence because it seemed to me that the scope of Regulation 8(2)(b) is central to the second issue to which I will shortly turn.
7.6 Finally, I was not satisfied that there was anything in the Remedies Directive which would require any different approach to the interpretation of the Regulation to that which I have just identified. Article 2(3) of Directive 92/13/EC as inserted by Article 2 of the Remedies Directive precludes the conclusion of a contract "before the review body has made a decision on the application either for interim measures or for review". That article does not require that the application for review must be made within the standstill period in order for the suspension to apply. Neither does the Remedies Directive specify the procedure to be followed (that being, subject to the principles of equivalence and effectiveness, principally a matter for national law) in order that the suspensive effect comes into force and does not, in particular, require that there be a specific interlocutory application brought to the review body (in the Irish context the High Court) either within or after the standstill period has expired.
7.7 In all those circumstances I was satisfied that Barrett J. was correct to conclude that the bringing of an application for the review of the award of a contract under Regulation 8(1) gives rise to an automatic suspension of the entitlement of the relevant contracting entity to conclude the contract concerned whether or not the challenge is brought within the standstill period and without the challenger having to bring a specific application before the Court. Rather, I was satisfied that the bringing (within the limitation period) of the application seeking a review of the decision to award operates automatically to impose the suspension. The question, posed by Barrett J. in the course of his judgment, as to how long that suspension lasts gives rise to the second issue determined on this appeal to which I now turn.
8. Is there a Jurisdiction to Permit? - The High Court Judgment and the Submissions
8.1 On this issue Barrett J. took the view that it was implicit in the wording of Regulation 8(2) that, should any of the limbs of that regulation be satisfied, the contracting entity might conclude the contract. Barrett J. held that Regulation 8(2) (specifically Regulation 8(2)(b)) allows the Court to intervene to lift the suspension before the final determination of the application for review. Barrett J. considered that this interpretation was consistent with the objective of the Directive, that being the avoidance of a “rush to contract” prior to the reviewing body becoming involved. He considered that, while EU law provides for a minimum standstill period, it does not require that this period must subsist until an application for review of an award decision is fully and finally determined. He concluded that a literal reading of Article 2(3) of Directive 92/13/EEC (erroneously referred to as Article 2(3) of Directive 89/665/EEC in the judgment), as inserted by the Remedies Directive, suggests that a contracting entity may be permitted to conclude a contract where the Court makes a decision on a related application for interim measures, and that Regulation 8 makes consistent provision in this regard. It should also be noted that Barrett J. held that the burden falls on the moving party, in this case the DAA, to satisfy the court that the suspension should be lifted.
8.2 As previously noted, OCS served a notice to vary in respect of this aspect of the High Court judgment. OCS argued that Regulation 8(2)(b) is not relevant in this case given that OCS is seeking a review of a contract award decision under Regulation 8(1)(b) which, in OCS's submission, is the operative subsection where the challenge relates to the decision to award the contract itself. OCS contended that the terms of Regulation 8(2)(b) referring to the Court granting leave to lift “any suspension of a procedure” is a direct reference to Regulation 8(1)(a) which provides for applications for interlocutory orders. OCS argued that it thus followed that Regulation 8(2)(b) only applies to an application under Regulation 8(1)(a).
8.3 The DAA contended that it is clear from Regulation 8, particularly the wording of Regulation 8(2)(b), that the Court has jurisdiction to lift a suspension. The DAA also argued that the Remedies Directive (in particular, Article 2(1) and Article 2(3)) does not prevent the Court from lifting the suspension or provide that the contracting authority cannot award the contract until the determination of proceedings. Additionally, the DAA argued that there was no basis for OCS’s attempt to distinguish between proceedings which involve a challenge to the award decision itself, on the one hand, and proceedings which involve a challenge to events which occurred prior to the award decision, on the other. The DAA further argued that Regulation 8(2) refers generally to an applications to the Court “under paragraph 1”, and does not specify that events listed under Regulation 8(2)(b) may arise only in the context of an application “under paragraph 1(a)”.
9. Discussion
9.1 It seemed to me that the starting point for a consideration of the issue which arises under this heading was the Remedies Directive. The DAA argued that Barrett J. was correct to conclude that the Remedies Directive implicitly contemplated a jurisdiction to disapply the suspensory effect of an application under Regulation 8(1). If the DAA were correct in that submission, then it would follow that the Irish courts would be required to seek to construe the Regulation in the same way unless it should prove impossible, as being contra legem, so to do.
9.2 In principle it seemed to me that there were three possible outcomes of the exercise of seeking to properly interpret the relevant provisions of the Remedies Directive. First, it is possible that the Remedies Directive does not contemplate, in a case where there is a challenge to the award of a relevant contract, the possibility of an application to remove the relevant suspensory effect. At the other extreme, it is possible that the Remedies Directive requires that an awarding authority or entity have the ability to make an application to the reviewing body (in this case the High Court) to remove the suspensory effect in such cases. Third, it is possible that the Remedies Directive permits but does not require a Member State to provide for such a procedure. It obviously follows that, if the third possibility represents the proper interpretation of the Remedies Directive, Ireland, along with all other Member States, has a procedural discretion as to whether to permit such an application to be brought and the issue would, in those circumstances, come down to an interpretation of the Regulation as a matter of Irish law.
9.3 In that context it is necessary to look more fully at what the Remedies Directive says. The relevant provisions seemed to me to be found at Article 2 of Directive 92/13/EEC, as inserted by Article 2 of the Remedies Directive:-
“3. When a body of first instance, which is independent of the contracting entity, reviews a contract award decision, Member States shall ensure that the contracting entity cannot conclude the contract before the review body has made a decision on the application either for interim measures or for review. The suspension shall end no earlier than the expiry of the standstill period referred to in Article 2a(2) and Article 2d(4) and (5).
[…]
4. Member States may provide that the body responsible for review procedures may take into account the probable consequences of interim measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures when their negative consequences could exceed their benefits”
9.4 That leads to the question of what is meant by the term "interim measures" in the context of the Remedies Directive. To date, at least when viewed from the perspective of a common law court, it has often appeared that the term "interim measure(s)" when used in European law refers to matters such as injunctions or stays which are designed to govern the situation pending a final resolution of the relevant proceedings. It is, of course, clear in that context that the term "interim measure" would refer equally, in a common law context, to an interim or an interlocutory injunction (and not be confined to an interim injunction) for the distinction between those two types of injunctions arises purely from the procedural names given to ex parte injunctions and injunctions sought on notice but where both categories involve orders sought to be made pending a resolution by full hearing of the substantive issues in the case.
9.5 That meaning of the term "interim measures" is well understood. However, it seemed to me that, in the context of public procurement, the same term has the potential to have a different or additional meaning. In Case C-214/00 Commission of the European Communities v. Kingdom of Spain (Judgment of 15th May, 2003) the ECJ had to consider an issue arising under then Spanish law in the public procurement field where, it would appear, it was necessary, in order to seek a form of injunction to prevent a public procurement process continuing pending a review by the Court, that the challenger initiated a full challenge to the public procurement process as a whole.
9.6 The ECJ, following the opinion of Advocate General Léger, found that the relevant provisions of Spanish law did not properly transpose the obligations set out in the Remedies Directive. The relevant provisions of the ruling of the ECJ are as follows:-
“99 [I]t should be pointed out that, although the Spanish legislation provides for the possibility of adopting positive interim measures, it nevertheless cannot be regarded as a system of interim judicial protection which is adequate to remedy effectively any infringements that might have been committed by the contracting authorities, since, as a general rule, it requires proceedings on the merits to be brought beforehand as a condition for the adoption of an interim measure against a decision of a contracting authority.
100. That finding is not affected by the fact that, where suspension is sought by way of legal proceedings, that may be done merely by a written document and the application initiating the proceedings may be formulated after the request for grant of the interim measure, since the requirement that that formality be completed beforehand likewise cannot be regarded as consistent with the requirements of Directive 89/665, as set out in the judgment in Commission v Greece.”
9.7 The context can be seen from the following passage from the opinion of Advocate General Léger:-
"102. Unlike the Spanish Government, I consider that it is apparent from the wording of Articles 1(1) and 2(1) of the review directive, from its general organisation, from its objective and from the case-law of the Court of Justice that protective measures cannot be regarded as ancillary to an action on the merits, but are measures which it must be possible to adopt separately.
103. As we have seen, the system established by the review directive is designed to ensure the effective application of the procedure directives. The review directive therefore requires appeal procedures against decisions taken unlawfully by the contracting authority to be effective and rapid. To that end, all decisions taken unlawfully by a contracting authority during the course of a public procurement procedure may be challenged in interlocutory proceedings by the injured parties. Accordingly, it is a question of preventing, correcting or making good the illegalities committed.
104. It is clear from all the above that not only is any decision taken unlawfully by a contracting authority before the contract is concluded between the successful undertaking and the contracting authority open to challenge, but interim measures may also be obtained before an action on the merits is brought against the unlawful decision. In other words, it must be possible not only to lodge an application for interim measures, but also for the court to deal with that application before any action on the merits against the unlawful decision. Otherwise, the objective of the review directive, which is, in particular, to avoid or correct illegalities committed by the contracting authority, clearly could not be achieved. The need to adopt urgent and effective measures cannot easily be reconciled with a requirement that an action on the merits should be brought beforehand.
105. That interpretation was confirmed by the Court of Justice in Commission v Greece, cited above.
106. It was alleged that the Hellenic Republic had not correctly transposed the provisions of the review directive.
107. The Greek Government acknowledged that it had not taken the measures necessary to transpose the directive within the time-limit set in the reasoned opinion, but contended that a law had since been adopted which did meet the requirements of the review directive.
108. The Court did not, however, omit to point out that the provisions of that law did not correctly transpose the provisions of the review directive. It observed, in particular, that, as far as the suspension of contract award procedures referred to in Article 2(1)(a) of the review directive was concerned, the national legislation transposing the directive, since it made suspension of the measure conditional on the introduction of an action for annulment against the contested administrative measure, did not satisfy the requirements of the review directive.
109. Paragraph 11 of the judgment in Commission v Greece, cited above, stated specifically: What is more, Article 52 of [Presidential Decree No 18/89] relates only to procedures for suspension of operation of measures and presupposes the existence of a main action seeking to have the contested administrative measure annulled, whereas, under Article 2 of [Directive 89/665], the Member States are under a duty more generally to empower their review bodies to take, independently of any prior action, any interim measures “including measures to suspend or to ensure the suspension of the procedure for the award of a public contract."
9.8 As I read those observations it seems to me that the ECJ and the Advocate General were referring to a potentially different meaning of the term "interim measures" when used in the public procurement context. One of the issues which arises, in the context of public procurement, is as to whether a public procurement process should be frozen or otherwise interfered with as a result of a challenge to a decision made or step or procedure taken in the course of the process (short of a final decision to award the relevant public contract). For example, many public procurement competitions involve an interim stage where contenders are determined to have qualified to go on to a subsequent or final bidding process. A party who is excluded at that stage may wish to contest the validity of their exclusion. They may wish, in that context, to seek to have the process frozen until such time as the review body has had the opportunity to consider their challenge. In such a situation there will be competing difficulties. On the one hand, freezing the process at that stage would be likely to cause a delay in the final completion of the award process even if the challenge is unsuccessful. On the other hand allowing the process to continue to the point of the final award of the contract (but before the contract is concluded) runs the risk that the process may have to be restarted from an earlier stage in the event that the challenge is successful and it is determined that the challenger should not have been excluded. Like considerations would apply, for example, where a bidder or potential bidder complained about the procedures proposed to be followed
9.9 In that sense the application by a challenger seeking, in the examples which I have cited, to be allowed remain in the process despite an allegedly wrongful exclusion or to prevent the proposed procedures being followed, can be described as "interim" in the sense that it is a challenge which is interim to the process. It seeks to interfere with that process while it remains in being. From Commission of the European Communities v. Kingdom of Spain it seems that the phrase "interim measures", or "protective measures" when used in the public procurement context, refers to or at least includes an application directed towards, for example, seeking to immediately correct an allegedly wrongful decision at some interim stage of the process or seeking to prevent an allegedly impermissible procedure rather than necessarily referring only to measures which are temporary pending a more thorough review which later measures might be described as interim to the court or review process rather than interim to the procurement process.
9.10 Viewed in that way "interim measures", when used in the Remedies Directive, may refer to measures designed to interfere in the course of the procurement process as opposed to a "review" which is designed, after the process has been completed, to challenge the ultimate outcome of the process.
9.11 Viewed against the Remedies Directive thus construed it is necessary to return to the proper meaning of Regulation 8 of the Regulation. In that context it should be noted that Irish procedural law does not place any barrier in the way of immediate access to the court in any circumstances where an entitlement in law to an order of the court at that stage arises. Be that as it may, Regulation 8(1)(a) refers to interlocutory orders which are designed to correct an alleged infringement or to prevent further damage to a challenger's interests but specifically includes measures designed to suspend the procedure for the award of the contract. Separately, an application under regulation 8(1)(b) is for review of the contracting entities decision to award the contract. Thus, it seemed to me, the Regulation itself makes a distinction between award decisions, on the one hand, and the procedure or process for the award of the contract, on the other. That distinction seemed to me to mirror the distinction made in the Remedies Directive between "interim measures" (or protection measures as that term was used by Advocate General Léger in Commission v. Kingdom of Spain) and a review of the award itself. It is clear from article 2 of the Remedies Directive that a distinction is made between interim measures and applications for review. It seems to me that the Regulation contains a similar distinction between an application for the suspension of a procedure (as mentioned in regulation 8(1)(a)) and a claim for review of a decision to award a contract (as mentioned in regulation 8(1)(b)).
9.12 It is against that background that it is necessary to return to regulation 8(2). Regulations 8(2)(a) and 8(2)(c) in substance allow a contract to be concluded when either the Court has determined the matter or the proceedings are discontinued or otherwise disposed of. Both of those provisions are concerned with circumstances where the proceedings are at an end. The only provision which might allow a court to intervene prior to the proceedings coming to an end is to be found in regulation 8(2)(b) where the Court can give leave to lift "any suspension of a procedure". However, what Regulation 8(2)(b) refers to is the lifting of a "suspension of procedure" which is a clear reference to the entitlement of the Court under Regulation 8(1)(a) to "ensure the suspension of the procedure for the award of" a contract. That is in distinction to an application under regulation 8(1)(b) which involves an application for review of the decision to award itself.
9.13 In those circumstances I was satisfied that the Regulation makes a clear distinction between, on the one hand, an application to court seeking to suspend the procurement procedure or process while it is in the course of being conducted and an application to review the result of that process after a decision to award the relevant public contract has been made, on the other hand. The two types of court application are separately dealt with in, respectively, Regulation 8(1)(a) and Regulation 8(1)(b). The entitlement of a contracting entity to go ahead and conclude a contract under Regulation 8(2)(b) is clearly confined to a case involving lifting a suspension of "a procedure" rather than a case involving the lifting of the automatic prevention or prohibition which is placed on entering into the substantive contract for the standstill period and, thereafter, as long as a challenge to the award is in place.
9.14 It seems to me that there is, in addition, a clear logic to the statutory regime as thus construed. Where there is a challenge to the award itself then the provision of an effective remedy requires that the contract not be concluded until that substantive challenge has been finally determined. However, where there is an attempt to suspend the procedure before it has completed then different considerations apply. There are potential advantages and disadvantages, even from the perspective of providing effective remedies, in suspending the procedure. To return to the examples given earlier of an exclusion of a party at some interim stage in the procedure or a challenge to the procedure as proposed to be adopted, a suspension of the procedure at that stage might have the advantage of having a final determination (as to whether the relevant exclusion or procedure was justified) made before the process carries on so that, if the challenge is successful, time and effort will not have been wasted on a procedure which would, in those circumstances, have to be repeated. On the other hand there is the disadvantage that, if the challenge fails, the award process will have been held up pending the decision of the Court and, thus, the final decision may well be delayed with potentially adverse consequences both for the awarding public entity, the successful tenderer and, indeed, potentially other participants in the process.
9.15 However, the important point to be made is that a decision by the Court not to suspend the procedure does not prevent the challenger from having an opportunity to ultimately obtain the contract should the case which the challenger makes ultimately prove successful. All that a failure to suspend means is that the process can go on up to the point of the award of the contract. The only issue which would have been decided by the Court in lifting the suspension on the procedure concerned would have been that the procedure could progress, without prejudice, to a conclusion of a decision to award subject to the procedure having to be redone in the event that the challenger was successful.
9.16 Thus a jurisdiction to lift the suspension of a procedure does not, of itself, deprive the challenger from an opportunity of being ultimately awarded the contract if the challenger can successfully persuade the Court that it is correct in its challenge to the process. On the other hand, if it were permissible to allow the public authority concerned to conclude the substantive contract itself, even though a challenge to the award of that contract was pending, the challenger might well be effectively excluded from an ability to be awarded the contract at all. It was that very difficulty with which the Remedies Directive was concerned.
9.17 It seems to me to follow that a purposive interpretation of the Regulation is consistent with the textual construction already addressed. It permits (but, of course, does not require) the Court to allow the procedure to be followed to its natural conclusion while the Court is considering whether a defect has been established in that procedure which requires to be remedied. However, the continuance of the procedure is necessarily without prejudice to the challenger's claim and may require the retracing of elements of the procedure in the event that the challenger establishes that the procedure was inappropriate. It does not preclude the challenger from ultimately securing the contract. Very different consideration apply, for the reasons which I have set out, if it were to be possible to permit the contracting authority to actually enter into a contract at a time when there was a subsisting challenge to the award of that contract itself.
9.18 The wording of the Regulation is not, it has to be said, particularly clear. It is of relevance to note that the restriction on the contracting entity from concluding a contract applies once there has been any application to the Court under Regulation 8(1). Thus the restriction applies equally to applications under Regulation 8(1)(a) and 8(1)(b). It follows that a contracting entity is precluded from concluding a relevant contract where there is an as yet unresolved application for suspension of the procedure before the Court. The prima facie position is, therefore, that the commencement of an application, under Regulation 8(1)(a), which seeks the suspension of the procedure to award, does not of itself suspend that procedure. In order for the procedure to be suspended it would require an intervention of the Court. However, even in the absence of the Court directing a suspension of the procedure, the contracting entity is precluded from concluding the contract unless one of the conditions specified in Regulation 8(2)(a) to (c) is met. It is in that context that it must be said that the wording of Regulation 8(2)(b) could be clearer. Given that there is no automatic suspension of a procedure (as opposed to an automatic prohibition on concluding the substantive contract), it might be asked as to why it might be considered necessary for a court to give leave to lift a suspension. It might in that context be argued that Regulation 8(2)(b) refers to a lifting of the automatic prohibition on concluding a contract. However, that is not what it says. Regulation 8(2)(b) refers to lifting the suspension of a procedure (and not lifting the automatic prohibition on concluding a contract) and, for the reasons already analysed, there is a clear distinction between the suspension of a procedure and the prohibition on concluding the substantive contract itself. Despite, therefore, the poor drafting of the relevant provisions in the Regulation, I did not find that the issues addressed in this paragraph could properly lead to any different interpretation of the Regulation as a whole.
9.19 In like vein it is necessary to also note the fact that Regulation 8(1)(a), in addition to referring to measures designed to suspend the procedure, also refers to "interlocutory orders with the aim of correcting an alleged infringement or preventing further damage". It is not at all clear what the meaning of "an interlocutory order with the aim of correcting an alleged infringement" can mean in the context of the Regulation. As a matter of Irish procedural law an interlocutory order is one which is temporary and designed to maintain the position of the parties, having regard to the principle of attempting to fashion, pending a final substantive decision of the Court, an interim regime which involves the least risk of injustice. It is hard, in that context, to see how an interlocutory order could actually correct an infringement. However, again, that problem with the drafting of the Regulation did not ultimately lead me to take a different view as to its overall construction.
9.20 For those reasons it seems to me that it is important that those charged with a review of the text of the Regulation should give urgent consideration to the issues raised by these proceedings. At a technical level, for the reasons addressed in the last number of paragraphs, it seems to me that the Regulation is poorly drafted. It may suffer from a problem which, all too frequently, the courts have faced where Irish implementing measures follow closely the wording of a relevant directive but use Irish legal terminology in circumstances where the precise way in which the requirements of the relevant directive will need to fit within Irish procedural machinery have not been properly worked out. However, in addition, there is the question of whether the Regulation, as this Court has construed it, actually meets the policy objectives of the State. What those policy objectives might be is not a matter for the Court. So far as the Court process is concerned, the consequence of the Court finding that there is no jurisdiction to relieve the contracting entity from a prohibition on concluding a contract as long as a challenge to the award of the contract itself is in being may lead to a need to ensure that such challenges are finalised in the shortest possible time. Very active case management and other procedures may need to be put in place to ensure that this is and can be done. However, any wider review of whether the regime provided for by the Regulation actually meets the legitimate requirements of contracting entities can only be resolved, if there is a problem, at a legislative level by means, if necessary, of amendments to the Regulation. Whether such amendments are desirable is not a matter for the Court. Subject to the comments included in this judgment as to the proper interpretation of the Remedies Directive, it is a matter for those charged with considering any such possible amendments to determine whether any potential regime which might be introduced by way such amendment is consistent with the Remedies Directive.
9.21 However, these latter comments are by the way to the main issue which arose in these proceedings. They do not alter what seemed to me to be the proper approach to the identification of the regime which the Regulation, as currently drafted, mandates.
9.22 As indicated earlier it is, of course, necessary to consider whether a construction of the Regulation on the basis thus analysed is consistent with the requirement that the Regulation, as an Irish implementing measure of the Remedies Directive, complies with Ireland's obligations under that directive. As pointed out earlier there are three possibilities in theory. First, it might be that, properly construed, the Remedies Directive requires that a Member State enact measures which permit the Court (or other review body) to have a jurisdiction to allow the contract to be concluded even though there be a challenge to its award. At the other end of the spectrum it is possible that, properly construed, the Remedies Directive does not allow for such a procedure. Finally, it is possible that the Remedies Directive permits but does not require such a measure to be included in national law effectively leaving it up to each Member State to determine whether to permit such a procedure. Given the construction which it seemed to me would ordinarily be placed, as a matter of Irish law, on the Regulation, it seemed to me that it was only necessary to consider whether such a construction was inconsistent with the Remedies Directive. If the Remedies Directive does not require (even though it permits) that there be a provision in national law allowing a contract to be concluded even though there is a subsisting challenge to the validity of its award, then the Regulation would not be required to be construed in any different way to the manner in which I have sought to analyse. It is only if the Remedies Directive required that the Court have such a jurisdiction that it might be necessary to revisit the proper construction of the Regulation so as to ensure, if at all possible, that it conformed with the requirements of the Directive. The drafting difficulties already addressed might well have been relevant in that context.
9.23 However, it did not seem to me that the Remedies Directive requires a Member State to have in place a measure which gives jurisdiction to a court (or other review body) to permit a challenged contract to be concluded while a challenge to the award itself is pending. It seemed to me that article 2.4, which speaks of the Court or other review body being entitled to grant or refuse interim measures, is primarily directed to the question of whether the procedure for award should be suspended rather than being directed to permitting the Court to decline to prevent a contract from being concluded while a challenge to the award itself remains unresolved. That paragraph of the Remedies Directive is, also, in its terms, permissive.
9.24 On that basis I was not satisfied that the Remedies Directive requires a Member State to have in place measures which permit the Court to allow a contract whose award is challenged to go ahead. It follows that it was unnecessary, for the purposes of these proceedings, to determine whether the Remedies Directive does not permit such a provision in national law or leaves it up to each Member State to make its own decision. There is no doubt that the United Kingdom regime permits, in express terms, of such an application. It is also of some relevance that no challenge appears to have been brought to those United Kingdom measures based on a contention that, by permitting a court to dispense with the prohibition on a contract being entered into while a decision to award it is under challenge, the UK regime is in conflict with the Remedies Directive. However, the absence of any such challenge cannot, in any event, be decisive and, furthermore, the United Kingdom regime is consistent with a view of the Remedies Directive which leaves it up to each Member State to decide whether such a measure should form part of its law.
10. Conclusions
10.1 For the reasons noted earlier in this judgment I was satisfied that Regulation 8(2) creates an automatic barrier to a relevant contract being concluded as long as a challenge to the award of that contract is in being. That situation pertains without the necessity of the challenger bringing a specific application before the Court. Furthermore, that position pertains notwithstanding the fact that the challenge to the award of the relevant contract is commenced outside of the standstill period provided for in the Regulation so as to preclude the conclusion of the relevant contract while the application under Regulation 8 is pending.
10.2 For the reasons set out earlier I was also satisfied that, on its proper construction, the Regulation (in particular Regulation 8(2)(b)) permits a court to lift a suspension of a procedure. However, the phrase "suspension of a procedure" refers to a decision as to whether the process leading to the award of the relevant public procurement contract should go ahead or should be suspended. I was satisfied that the Regulation does not confer on the Court a jurisdiction to permit a contract to be concluded when there remains unresolved a challenge to the award of the contract itself.
10.3 So far as the Remedies Directive is concerned I was, again for the reasons set out in this judgment, satisfied that, at a minimum, the Remedies Directive does not require a Member State to have in place a legal regime which permits the Court or other review body to have a jurisdiction to allow a contract to be concluded notwithstanding an unresolved challenge to its award remaining in being. Thus there was, in my view, no need to depart form what would otherwise have been the proper interpretation of the Regulation to ensure that its construction conformed with the Remedies Directive. Likewise, there was no need to determine whether the Remedies Directive permitted (as opposed to required) such a jurisdiction.
10.4 Finally, it is important to note the finding already made by this Court in its earlier ruling to the effect that it was neither necessary nor appropriate, in the light of the Court's findings generally, to address the criteria which might arise in the event that the Court had a jurisdiction to permit a contract to go ahead notwithstanding an extant challenge to the validity of its award less still the application of any such criteria to the facts of this case. For those reasons I supported the Court's view that the appeal of the DAA should be dismissed but that the issue raised by OCS on its notice to vary should be allowed.