Reg.100 of the Public Contracts Regulations 2015 (PCR2015) transposes Art 2d(3) of Directive 89/665 as amended by Directive 2007/66 (here), and establishes the general interest grounds for not making a declaration of ineffectiveness that would otherwise derive from reg.99 PCR2015. Under reg.100(1) PCR2015, where the Court is satisfied that any of the grounds for ineffectiveness of reg.99 applies, it must not make a declaration of ineffectiveness if the contracting authority or another party to the proceedings submits such a request, and the Court is satisfied that overriding reasons relating to a general interest require that the effects of the contract should be maintained. Pedro discusses it here.
For these purposes, the general interest grounds for not making the declaration of ineffectiveness should, in principle, not be of an economic nature. Where the reasons adduced to oppose the declaration of ineffectiveness are of an economic nature, the additional conditions of reg.100(2) to (4) PCR2015 need to be complied with. In that regard, it should be stressed that economic interests in the effectiveness of the contract may be considered as overriding reasons only if in exceptional circumstances ineffectiveness would lead to disproportionate consequences [reg.100(2)]; and, in any case, economic interests directly linked to the contract cannot constitute overriding reasons relating to a general interest [reg.100(3)].
Reg.100(4) PCR2015 clarifies that such economic interests directly linked to the contract include (a) the costs resulting from the delay in the execution of the contract; (b) the costs resulting from the commencement of a new procurement procedure; (c) the costs resulting from change of the economic operator performing the contract; and (d) the costs of legal obligations resulting from the ineffectiveness. Therefore, the scope for purely economic interests to be taken into account in order to bar ineffectiveness is rather limited although, to the best of my knowledge, there is no guiding case law that clarifies this provision [for general discussion of the practical application of this provision, see K Struckmann & P Hodal, "Private Enforcement of Contract Ineffectiveness: A Practitioner's Point of View" (2014) 1 European Procurement & Public Private Partnership Law Review 27-35].