No L 76/14 Official Journal of the European Communities 23.3.92 COUNCIL DIRECTIVE 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, : energy, transport and telecommunications sectors THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and in particular Article 100a t!xereof, Having regard to the proposal from the Commission (1), In cooperation with the European Parliament (2), Having regard to the opinion of the Economic and Social Committee (3), Whereas Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors () lays down rules for procurement procedures to ensure that potential suppliers and contractors have a fair opportunity to secure the award of contracts, but does not contain any specific provisions ensuring its effective application; v Whereas the existing arrangements at both national and Community levels for ensurmg its application are not always adequate; Whereas the absence of effective remedies or the inadequacy of existing remedies could deter Community undertakings from submitting tenders; whereas, therefore, the Member States must remedy this situation; Whereas Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts () is limited to contract award procedures (1) OJ No C 216, 31. 8. 1990, p. 8; and 0J No C 179, 10. 7. 1991, p. 18. (2) O] No C 106, 22. 4. 1991, p. 82 and  OJ No C 39, 17. 2. 1992. {3) OJ No C 60, 8. 3. 1991, p. 16 (4) O] No L 297, 29. 10. 1990, p. 1. (5) OJ No L 395, 30. 12. 1989, p. 33. within the scope of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (6), as last amended by Directive  90/531/EEC, and Council Directive 77/62/EEC- of 21 December 1976 coordinating procedures for the award of public supply contracts (7), as last amended by Directive 90/531/EEC; Whereas the opening-up of procurement in the sectors concerned to Community competition implies that provisions must be adopted to ensure that appropriate review procedures are made available to suppliers or contractors in the event of infringement of the relevant Community law or national rules implementing that law; Whereas it is necessary to provide for a substantial increase in the guarantees of transparency and non-discrimination and whereas, for it to have tangible effects, effective and rapid remedies must be available; Whereas account must be taken of the specific nature of certain legal orders by authorizing the Member States to choose between the introduction of different powers for the review bodies which have equivalent effects; Whereas one of these options includes the power to intervene directly in the contracting entities’ procurement procedures such as by suspending them, or by setting aside decisions or discriminatory clauses in documents or publications; Whereas the other option provides for the power to exert effective indirect pressure on the contracting entities in order. to make them correct any infringements or prevent them from committing infringements, and to prevent injury from occurring; Whereas claims for damages must always be possible; Whereas, where a claim is made for damages representing the costs of preparing a bid or of participating in an award procedure, the person making the claim is not be required, in order to obtain the reimbursement of his costs, to prove that the contract would have been awarded to him in the absence of such infringement; (6) OJ No L 185, 16. 8. 1971, p. 5. (7) O] No L 13, 15. 1. 1977, p. 1.