Controversies regarding the functional subject-matter jurisdiction of the courts in litigation involving the execution of public procurement contracts

Abstract

This study aims to assess the extent to which Directive 89/665/EEC on the coordination of laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts has been correctly transposed into national legislation. The directive seeks to ensure the availability of effective and expeditious remedies for individuals harmed by violations of public procurement rules.

Given that both the previous legislative instrument—Government Emergency Ordinance No. 34/2006 on the award of public procurement contracts, public works concession contracts, and service concession contracts—and the current legislation—Law No. 101/2016 on remedies and review procedures concerning the award of public procurement contracts, sectoral contracts, and works and services concession contracts—have been subject to numerous amendments, and in view of the fact that jurisdiction over disputes relating to the performance of public procurement contracts has been successively transferred between civil and administrative courts, while appellate procedures have oscillated between appeal and second appeal (recours), thereby causing confusion both within the judiciary and among participants in the procurement process, one may conclude that the legislature has adopted at the very least an original approach to complying with the principle of effectiveness enshrined in the aforementioned European directive.