Ogiltighet i upphandlingsrätten : Innebörd och följder vid otillåten ändring

Sammanfattning: The possibility to declare a contract ineffective was introduced into the field of public procurement through Directive 2007/66/EC. The Court of Justice had called illegal direct award of contracts the most serious breach of Community law in the field of public procurement. Ineffectiveness as a remedy was considered to be an efficient tool against such infringements. The aforementioned directive leaves to each EU member state to decide if the ineffectiveness of a contract implies the cancellation of only the remaining contractual obligations or whether it includes those already performed. If the former approach is chosen, other penalties should be imposed onto the contracting authority, which correlate to the performed contractual obligations. In any case, terminating a contract that has been declared ineffective shortly after it has been signed should in the majority of instances be a fairly simple process. Declaring a contract ineffective at a later stage, however, where the parties have fulfilled some or all of their commitments according to the contract, raises some interesting issues. This paper aims to investigate the meaning of contractual ineffectiveness, in particular when occurring at a later stage, in Swedish public procurement law.