Law 43/2024, published on 2^nd December, amends Law 30/2021, which establishes special public procurement measures.

Among the changes, it is important to highlight those relating to the implementation of projects financed or co-financed by European funds under the Recovery and Resilience Plan (PRR).

To this end, a system of special prior inspection by the Court of Auditors has been created, in which:

• Acts and contracts are effective and may take effect before the decision of the Court of Auditors;
• When the acts and contracts comply with the terms of the law, the Court of Auditors issues a favourable decision, which may be accompanied by certain recommendations which will not prevent the execution of the act or contract in question;
• If there are indications of non-compliance with the law, the Court of Auditors refers the case back for concomitant inspection and possible determination of financial liability, without this impeding the execution of the act or contract in question;
• In cases where there has been a total omission of the contract formation procedure or the assumption of costs without being covered by the appropriate budget, the Court of Auditors issues a decision of non-acceptance, which results in the immediate cessation of the effects of the acts or contracts which are the subject of the decision.

An exceptional system of urgent administrative action in pre-contractual litigation has also been created, in which actions, provided they are brought within 10 working days of notification of the award to all bidders, automatically suspend the effects of the contested act.

The defendant may request the court to provisionally lift the suspensive effect by demonstrating the expiry of the above-mentioned 10 working day period and the risk of loss of funding. The court has a maximum of 48 hours to verify these requirements have been met.

In the event of this provisional lifting, the plaintiff is notified and has 5 days to request that the suspensive effect be maintained, after which the defendant is notified to expand on the grounds for its request within 7 days.  

The plaintiff then has 7 days to respond again, followed by a decision on the incident by the judge. 

Additionally, public works contracts or contracts for the supply of goods or services may be subject to arbitration if, during their execution, disputes arise which, due to their importance, could jeopardise the fulfilment of contractual deadlines or the loss of European funds (regardless of whether such contracts provide for the dispute to be settled by the administrative courts).

Prior to the start of arbitration, either party may propose an attempt at out-of-court conciliation before a committee made up of a representative of each party, chaired by the president of IMPIC, IP or a qualified member of that Institute.

Law 43/2024 comes into force on 16^th December, and a transitional regime is established, namely for pending cases.