The 'TROPIC' appeal

Taken together with the pre-contractual interim relief proceedings, which take place before the contract is signed, the action to challenge the validity of the contract - supplemented two years later by contractual interim relief proceedings - offers unsuccessful tenderers a range of safeguards against breaches of the obligations regarding publicity and competitive tendering committed by contracting authorities or contracting entities. The 'Tropic' action appears to be a counterbalance to the narrow scope of the contractual interim relief proceedings, which are available only in respect of contracts covered by the Order of 7 May 2009, and a counterweight to the weakening of pre-contractual interim relief following the 'Smirgeomes' case law ' - extended to contractual interim relief - which requires the applicant to raise grounds against the procurement procedure that have caused them harm. In a significant legal opinion dated 11 April 2012, the Council of State sought to broaden the scope of the 'Tropic' remedy by, on the one hand, extending it to any third party who had an 'interest in concluding the contract' - even if they were not a tenderer - and, on the other hand, confirming that the 'Smirgeomes' case law did not apply to the praetorian remedy.