Summary

Procurement contracts have for a long time had the status of a “holy cow” within the law of European Union Member States. The obligation of a Member State to end the validity of a procurement contract, upon the conclusion of which European Union Law has been materially violated, was acknowledged by the European Court of Justice for the first time in the judgment Commission v Germany in 2004. The pioneering judgment with precedential value concerned only the obligation of a Member State towards the Union and not the mutual relations between the subjects to the procurement procedure. Identification of nullity of the contract as a law enforcement measure was introduced to European Union procurement law in 2007 with the amendment of law enforcement directives. According to the law enforcement directives, the grounds for nullity are a failure to publish a contract notice i.e. a directly awarded unlawful contract and violation of the mandatory waiting period requirement. In the case of other violations, the Member States can freely establish law enforcement measures with less stringent consequences.

In practice, however, violations may occur, which are equally as severe as the unlawful contract directly awarded or the failure to apply the waiting period. Is it possible, in the case of violations not mentioned in the directive but distorting the final result of the procurement procedure, to demand identification of nullity of a procurement contract on certain conditions by those who were deprived of the possibility to compete for the contract due to the violation? The article points out arguments in favour of expanding the grounds for identifying the nullity. At the same time the author concludes on the limitations of expanding the grounds of nullity, arising from the principle of legal certainty, and on the priority of pre-contractual law enforcement measures. A separate analysis is performed on the grounds of nullity of a procurement contract and the possibilities of expanding them in Estonian law.