1. In the case of an infringement of Article 1(5), Article 2(3) or Article 2a(2) which is not covered by Article 2d(1)(b), Member States shall provide for ineffectiveness in accordance with Article 2d(1) to (3), or for alternative penalties. Member States may provide that the review body independent of the contracting authority shall decide, after having assessed all relevant aspects, whether the contract should be considered ineffective or whether alternative penalties should be imposed.
2. Alternative penalties must be effective, proportionate and dissuasive. Alternative penalties shall be:
the imposition of fines on the contracting authority; or,
the shortening of the duration of the contract.
Member States may confer on the review body broad discretion to take into account all the relevant factors, including the seriousness of the infringement, the behaviour of the contracting authority and, in the cases referred to in Article 2d(2), the extent to which the contract remains in force.
The award of damages does not constitute an appropriate penalty for the purposes of this paragraph.]
Textual Amendments