Creation of an [extremely] exceptional regime within the scope of pre-contractual litigation proceedings aimed at expediting the implementation of the Recovery and Resilience Plan (PRR).

Under the combined provisions of Article 95(3) and Article 104(1)(a) of the Public Contracts Code and Article 103-A(1) of the Code of Administrative Court Procedure (hereinafter, CPTA), pre-contractual litigation actions concerning, broadly speaking, pre-contractual procedures published in the Official Journal of the European Union (OJUE), and filed within 10 working days of notification of the contested procedural act, trigger an automatic suspensive effect that prevents the (public) contracting authority from, depending on the contested act and the timing of the challenge, continuing the procedure, entering into the contract, and/or executing the contract, pending the final judgment of a court on the legality or illegality of the contested act.

However, under Article 103-A(2) of the CPTA, both the contracting authority and any interested party may request the lifting of the aforementioned suspensive effect. The party challenging the procedural act will then have 5 days to respond, pursuant to paragraph 3 of the same provision. The court will then decide on the incident of lifting the suspensive effect, lifting it or maintaining it through a balancing of the public and private interests at stake, as required by Article 103-A(4) of the CPTA.

Nevertheless, the recent legislative amendment introduced by Law No. 43/2024 of December 2, amending Law No. 30/2021 of May 21, which approves special measures for public procurement, has established an exceptional regime for lifting (let's call it "provisional") the automatic suspensive effect in the case of contracts to be awarded under the procedure being financed or co-financed by European funds.

It should be noted that the pre-contractual litigation action has an urgent nature and is therefore exceptional in relation to non-urgent administrative actions. And within this action, the incident of lifting the automatic suspensive effect is also exceptional.

In order to accelerate the execution of funds mainly allocated to the Recovery and Resilience Plan (RRP), the legislator has introduced a new exceptional regime at the heart of the type of pre-contractual litigation administrative action, through the (new) Article 25-A of Law No. 30/2021 of May 21.

This exceptional regime - truly exceptional, given the foregoing - entered into force on December 16, 2024 (see Article 5(2) of Law No. 43/2024 of December 2).

But what does Article 25-A of Law No. 30/2021 of May 21, under the heading "Exceptional regime for urgent pre-contractual administrative litigation," actually tell us?

If the contract to be awarded under the procedure to which the procedural act challenged in the pre-contractual litigation action belongs is financed or co-financed by European funds, the public entity may request the "provisional" lifting of the automatic suspensive effect. For this purpose, it is sufficient to attach summary evidence that there is a risk of losing the financing if the suspensive effect is maintained during the judicial proceedings, for the court to lift, "provisionally," within 48 hours, the suspensive effect, allowing the public entity to continue the procedure, award and/or execute the contract.

And this decision of the court is made without prior statement from the party challenging the procedural act, who may only comment subsequently to the "provisional" lifting of the suspensive effect, arguing there for a decision by the court to reinstate the suspensive effect.

The defendant public entity will then be notified to expand the grounds for its request to lift the suspensive effect and the court will decide again on the incident, now definitively, in a manner "somewhat similar" to Article 103-A(4) of the CPTA, i.e., with an appeal to a balancing of the public and private interests alleged and proven by the parties.

Since this exceptional regime also applies to pending judicial proceedings, the truth is that it is an unknown how the courts will apply this regime in such cases. For example, what will happen to the incidents of lifting the suspensive effect requested and/or even already decided under Article 103-A of the CPTA, in which there has already been an allegation and proof of facts that would be relevant, mutatis mutandis, to the new regime enshrined in the aforementioned Article 25-A?

The application will naturally depend on a case-by-case analysis of each individual case, where, in our view, the judge's duty of case management (Article 7 of the CPTA) should prevail, in order to avoid procedurally useless acts, without ever forgetting those that are, on the one hand, the principles of equality of the parties, cooperation and procedural good faith (Articles 6 and 8 of the CPTA) and, on the other hand, the rights of interested parties or competitors who have challenged the decisions of the Public Administration, as administrators.