In order to prevent disruption to public services, parties looking to challenge decisions by public authorities (local councils, government departments, etc) have an obligation to bring their claims – including any claims that rely on EU law – within a reasonable time.
In England and Wales, where the majority of these cases are brought, parties are required to raise proceedings against the relevant public authorities promptly and in any event within three months. A similar rule applies in Scotland although there is no equivalent of the three month 'long stop' date.
So what does ‘promptly’ actually mean? The answer to that question is an inherently uncertain one, usually viewed as something which can only be determined by the court on a case-by-case basis. It may, for instance, require a challenge to be brought within days, or it may permit a longer period to elapse. But do all parties seeking judicial review necessarily have to accept this degree of uncertainty? A recent decision of the European Court of Justice suggests not.
The Uniplex ruling
In its judgment of 28 January 2010 in Uniplex – Case C-406/08, the European Court gave a preliminary ruling on the validity of the requirement, under regulation 47(7)(b) of the Public Contracts Regulations 2006, that any application to the Court in respect of a breach of the regulations must be brought 'promptly and in any event within three months' of the cause of action arising. The 2006 regulations implement the relevant EU Directives on the competitive procurement of works, services and goods by contracting authorities.
The regulations do not apply in Scotland. The equivalent regulations here are the Public Contracts (Scotland) Regulations 2006. Regulation 47(7)(b) of these Scottish regulations is expressed in substantially identical terms to regulation 47(7)(b) of the UK regulations.
The question put to the Court was whether this limitation provision was consistent with the requirement of article 1(1) of Directive 89/665/EC that Member States take steps to ensure that, "decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible".
The Court decided that this limitation period was inconsistent with Community law as it was not sufficiently certain or predictable in its application to satisfy the requirement for 'effective review' specified in article 1(1) of the Directive.
Thus, the Court held that the promptness requirement imposed by regulation 47(7)(b) (although not the three month limit) was invalid as a matter of EU law.
It was the uncertain nature of this requirement which concerned the Court, not the requirement for promptness. The Court did not base its ruling on the requirements of Directive 89/665/EC, but rather on the combined requirements of (a) the principle of legal certainty and (b) the principle of effectiveness, which constitute fundamental principles in the EU legal order. On that basis, it is quite possible that Uniplex has the potential to be applied in future cases which go far beyond the boundaries of procurement law.
In effect, the Uniplex ruling looks capable of preventing the application of a promptness requirement to any judicial review proceedings in which a party is seeking to assert directly effective rights under EU law.
While in England and Wales, public authorities can still probably rely on the three month long stop date; this ruling does leave something of a legal vacuum in Scotland, with no firm long stop date to fall back on. Ultimately this leaves Scottish public authorities vulnerable, knowing that challenges could be made at any time.
EU law covers many areas including environmental, consumer protection, employment and social security, discrimination and disability, and equal pay – so there are a number of areas in which public authorities could be impacted if there are no moves to create a clear approach under Scots Law.