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Moreover, that system could include provisions allowing the review body or court to ask for financial guarantees as interim measures only where they are necessary to ensure the possibility of the fine having to be paid at the end of the procedure (although I am not sure that this mechanism to avoid bankruptcy proofness is necessary).
It would also be possible to create a domestic discretionary exclusion ground for spurious litigants on the basis that this conduct makes ‘’ [Art 57(4)(c) Dir 2014/24].
In my view, the existence of these potential alternatives should have been taken into account and this could have led to a finding that the upfront requirement of good conduct guarantees is in itself disproportionate.
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be automatically and unconditionally kept by the contracting authority in the case that the appeal is rejected or withdrawn, The good conduct guarantee of 1% of the value of the public contract, limited in accordance with the type of contract remains modest (see judgment of 6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.