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is a measure liable to discourage frivolous challenges and ensure that all individuals have their actions dealt with as rapidly as possible, in the interest of the proper administration of justice, in accordance with Article 47, first and second paragraphs, of the Charter’ ‘the obligation to provide a good conduct guarantee is a less dissuasive measure in its current version than in its initial version, since it can no longer be automatically and unconditionally kept by the contracting authority in the case that the appeal is rejected or withdrawn, The good conduct guarantee of 1% of the value of the public contract, limited in accordance with the type of contract remains modest (see judgment of 6 October 2015, Orizzonte Salute, C-61/14, EU: C:205, paragraph 58), in particular for tenderers which must normally demonstrate a certain financial capacity.

That guarantee may, next, and in any event, be constituted in the form of a bank guarantee.

Finally, it has to be constituted only for the period between the filing of the application and final judgment Judgment criticisable concerns the analysis of proportionality.

I think that the imposition of financial requirements and costs in order to challenge procurement decisions—including the payment of (non-negligible) courts fees—should be considered more clearly contrary to Art 47 CFR and the Remedies Directives.

These rules require the recognition of standing to challenge procurement decisions ‘’, and not only to those that can foot the bill of a (bank-issued) financial guarantee or absorb the opportunity cost of having a significant amount of money idle for the duration of the review procedures.

Moreover, the assessment of proportionality in the terms carried out by the ECJ in the Judgment can be particularly burdensome for SMEs, for whom the effects of a financial requirement proportional to the value of a contract they were not awarded can be clearly disproportionate, or at least imply an excessive risk.

I find this Judgment seriously troubling for two reasons: (a) it goes against basic intuitions of the effect of financial requirements on access to justice and (b) I do not grasp the purpose of “sure-refund” good conduct guarantees, which seem to be useless procedural hurdles. The legal issue raised by the joined cases decided in has been a rather moving target because the underlying Romanian rules have been altered in the period between the referral of the question to the ECJ and its Judgment.The initial question concerned the compatibility with EU law of requirements to furnish a good conduct guarantee in order to challenge procurement decisions under the risk that the guarantee would be executed in case of negative results for the litigant.The forfeiture of the guarantee was later declared unconstitutional by the Romanian Constitutional Court and, as a result, the only question left for the ECJ to consider revolved around the compatibility of such good conduct guarantees in the scenario where they would be refunded to the challenger of the procurement decision, whatever the outcome of the review process.So, in short, the ECJ had to consider whether the Remedies Directives and Art 47 CFR excluded the possibility to require the provision of a “sure-refund” good conduct guarantee in order to challenge public procurement decisions under Romanian law (C-439/14, para 38).After rehearsing its standard case law concerning the Remedies Directives’ objective of ensuring the effectiveness of the substantive EU public procurement rules (paras 41-44) and stressing that the 2007 review of those rules aimed at ensuring ‘’ (para 45), the ECJ focuses on the specific assessment of the “sure-refund” good conduct guarantee and follows the analytical framework proposed by AG Sharpston in her Opinion, which started from the position thatthe good conduct guarantee …

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constitutes, as a pre-condition for getting any challenge examined, a limitation on the right to an effective remedy before a tribunal within the meaning of Article 47 of the Charter which, in accordance with Article 52(1) of the Charter can therefore be justified only if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others (see judgment of , In assessing this test, the ECJ considers that the first requirement of explicit legal basis is met (para 50). However, and this is where the ECJ starts to deviate from the analysis of AG Sharpston, the Court also considers that ‘the fact that the good conduct guarantee may reach the substantial amount of EUR 25 000 or EUR 100 000 cannot lead to the conclusion that the obligation to give such a guarantee undermines the fundamental content of the right to an effective remedy since, in any event, that guarantee, cannot be kept by the contracting authority, whatever the outcome of the action’ (C-439/14, para 50, emphasis added).

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  1. Det er lidt pudsigt, men vi har alle en tendens til at shoppe med følelserne, når vi shopper til en bestemt (nogle gange endda fiktiv) begivenhed eller til en bestemt version af os selv, som vi håber at blive engang.