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Case E-16/16, Fosen-Linjen AS and AtB: An EFTA Court case clarifying key aspects of EU procurement legislation

  • United Kingdom
  • Competition, EU and Trade - Competition e-briefings
  • Public procurement

14-02-2018

Introduction

This European Free Trade Association ("EFTA") Court case deals with a Norwegian court’s request for an advisory opinion on the correct interpretation of Directive 89/665/EEC (the "Remedies Directive")1.

The case is of particular interest given that in its judgment the EFTA Court reaches the opposite conclusion from that of the UK Supreme Court, which in EnergySolutions2 concluded that, under implementing procurement legislation, the remedy of damages was only available under the Remedies Directive where there was a sufficiently serious breach. In the current case, the EFTA Court concludes, without much difficulty, that the Remedies Directive does not impose such a limitation on the availability of damages and that any infringement of public procurement law is sufficient to trigger liability in this way.

The case deals with a number of other important issues, including the extent of the obligation on contracting authorities to verify information in tenders.

Relevant facts

Fosen-Linjen, a small Norwegian ferry operator, and the claimant in the domestic proceedings, came second in a tender process for the operation of a ferry route. The process, which had been launched in June 2013, was subject to the Norwegian law implementing Directive 2004/18/EC (the "2004 Directive"),3 the predecessor directive to Directive 2014/24/EU (the "2014 Directive"),4 regulating public procurement in EEA countries.

Tenders were evaluated on the basis of the following award criteria: "price" (50 per cent), "quality" (25 per cent) and "environment" (25 per cent). As to the environmental criterion, this was assessed by reference to the amount of fuel which each bidder specified as necessary for the running of the ferry service. Crucially, bidders were not required to explain how the amount of fuel which they had specified in their tenders, had been calculated or to state the assumptions underlying those calculations. Norled was declared the winner, despite the fact that Fosen-Linjen had achieved the highest score for price, and a score equal to that of Norled for quality. What seems to have made the difference in the rankings was the fact that Norled had achieved the highest score in the evaluation of the criterion dealing with environmental considerations.

In January 2014, Fosen-Linjen sought and obtained interim measures stopping the conclusion of the contract between AtB, the contracting authority, and Norled. AtB subsequently decided to cancel the contract award process5 and conduct a new competition, after the Court of Appeal confirmed the decision of a lower court to grant interim measures prohibiting the contract’s signature. In doing so, AtB referred to the Court of Appeal’s finding that AtB had failed to establish a reasonable basis for evaluation and committed an error by not verifying the reasonableness of the fuel consumption estimate which Norled had specified in its tender.

In subsequent proceedings that dealt with Fosen-Linjen’s claim for damages for loss of profit or, in the alternative, bidding costs, while criticising AtB’s approach to the evaluation of the environmental criterion, the court did not award damages to Fosen-Linjen. The latter appealed this decision to the Court of Appeal.

In its turn, the Court of Appeal made a reference to the EFTA Court, asking a number of questions which essentially related to:

• whether the Remedies Directive permitted the imposition of conditions for claiming damages in the context of a contract award process. A key issue in this context, was whether the remedy of damages should only be deemed available where in line with the conditions for Member State liability, as established in Brasserie Du Pêcheur,6 there was a sufficiently serious breach;7

• clarifying the burden of proof when claiming damages for loss of profit;

• whether there were any arguments on which a contracting authority could rely as defence against liability, and the burden of proof in that regard;

• whether the principle of equal treatment required the effective verification of information contained in tenders.

The Court’s decision

Whether the Remedies Directive permits the imposition of conditions for claiming damages

In reaching its conclusion on this point the Court noted, among other things, that the preamble to the 2004 Directive made it clear that the purpose of that Directive was to simplify and modernise the national procedures for the award of public contracts, in order to facilitate the freedom of movement of goods, the freedom of establishment, the freedom to provide services and the opening-up of such contracts to competition.

It was also the case that the Remedies Directive was intended to ensure the effective application of EEA rules in the award of public contracts. Accordingly, the Remedies Directive required European Economic Area ("EEA") States to take the measures necessary to ensure that contracting authorities’ decisions could be reviewed effectively and as rapidly as possible. Article 2(1)(c) of the same Directive made it clear that such measures had to include powers to award damages to those harmed by an infringement of public procurement law.8

The Remedies Directive did not lay down any conditions for the award of damages as a remedy in the field of public procurement. Accordingly, it was for the legal order of each EEA State to determine the criteria on the basis of which to assess the harm caused by an infringement of EEA legislation in this context. However, in doing so, national rules had to comply with the principles of equivalence and effectiveness.9

Also, the Remedies Directive did not indicate in any way that the breach of public procurement law liable to give rise to a right to damages should have specific features.10 It was also the case that, the Remedies Directive had to be interpreted in the light of fundamental rights, in particular the right to an effective judicial remedy.11

A rule requiring a breach of a certain type or gravity would ultimately, substantially undermine the goal of effective and rapid judicial protection sought by the Remedies Directive. It would also interfere with the objectives pursued by the 2004 Directive, namely to guarantee the free movement of services and to ensure open and undistorted competition in this field in all EEA States.12

By reference to Strabag,13 the Court noted that the remedy of damages could constitute, where appropriate, a procedural alternative, which was compatible with the principle of effectiveness and the Directive’s objective of ensuring effective review procedures. However, for that to be the case, it was necessary for the remedy of damages to be no more dependent than any of the other legal remedies available under that Directive, on a finding that the contracting authority was at fault.

According to the Court, the aim of the damages remedy was to: (a) compensate for any loss suffered; (b) restore confidence in the effectiveness of the legal framework; and (c) deter contracting authorities from breaching the rules.

Limiting the availability of damages could have a negative effect on the willingness of contracting authorities to comply with procurement law. Separately, Court of Justice of the European Union ("CJEU") jurisprudence (Commission v Portugal,14 and Strabag) had already established that a national rule making damages conditional on proof of fault or fraud was not permissible on the basis that it made actions for damages more difficult and costly, thereby impairing the full effectiveness of the public procurement rules.15 The same had to apply where there existed a general exclusion or a limitation on the availability of damages to specific cases only, such as when the breaches were deemed to be of a certain gravity, whereas minor breaches did not lead to the contracting authority incurring liability.

A requirement that only a breach of a certain gravity could give rise to damages also created the risk that a breach of the same public procurement law provision might involve liability in one EEA State but not another.16 This would then mean that economic operators would encounter substantial difficulties in assessing the potential liability of contracting authorities in different EEA States.

While the need for a sufficient causal link between the infringement committed and the damage incurred was not in dispute, the gravity of a breach of the EEA rules on public contracts was irrelevant for the award of damages.

In view of the above considerations, the Court concluded that the award of damages did not depend on whether the breach of a provision of public procurement law was due to culpability and conduct deviating markedly from a justifiable course of action, or whether it occurred on the basis of a material error, or whether it was attributable to the existence of a material, gross and obvious error. A simple breach of public procurement law was in itself sufficient to trigger a contracting authority’s liability to compensate the person harmed for the damage suffered, provided that the other conditions for the award of damages were met including, in particular, the existence of a causal link.

Clarifying the burden of proof when claiming damages for loss of profit

As to the question of the burden of proof for damages claims, the referring court had asked whether it was permissible under the Remedies Directive for the burden of proof for the award of damages to be based on the principle of "clear, that is, qualified preponderance of evidence". In considering this issue, the Court first noted that it followed from the principle of effectiveness and the right to damages under art.2(1)(c) of the Remedies Directive, that a person harmed by a public procurement law infringement should, in principle, be able to seek compensation for loss of profit.

In the absence of specific EEA provisions on the burden of proof in this regard, it was for the legal order of each EEA State to determine appropriate conditions, provided that these were consistent with the principles of equivalence and effectiveness. Relevant in this context was the fact that the principle of effectiveness precluded national legislation which made it impossible or excessively difficult to obtain damages for loss of profit. However, requiring a tenderer to prove with "clear, that is, qualified preponderance of evidence" that, but for the contracting authority’s breach, the tenderer would have been awarded the contract, did not, by itself, fail the test of effectiveness.

Grounds on which a contracting authority might rely as defence against liability, and the burden of proof in that regard

The specific question here was effectively whether a contracting authority could avoid liability in a damages claim by invoking a procedural error, which was different from the infringement which was the subject matter of the claim, as the reason for the cancellation of the procurement process.. The Court considered this issue first in relation to the question of damages for biding costs and then in relation to damages for loss of profit.

By reference to the CJEU decision in GAT,17 the Court noted that, a tenderer harmed by a contracting authority’s breach, could not be denied the right to claim damages (for bidding costs) on the grounds that the award procedure was in any event defective as a result of some other unlawful decision by the contracting authority.

At the same time, other factors could be relevant in the assessment of a biding costs claim, such as whether a reasonably well-informed tenderer of normal diligence prepared its bid with ordinary care and whether the tender was submitted in good faith. However, such other factors could not make it impossible or excessively difficult for a claimant to obtain compensation for bidding costs.

As to the question of a claim for compensation of loss of profit, the Court noted that art.41(1) of the 2004 Directive18 implicitly recognised that a contracting authority could cancel an award process. However, in doing so, the contracting authority had to comply with EEA law, and notify the reasons for the cancellation so that that decision could be subject to judicial review.19

Indeed, the Court accepted that sometimes it was necessary to cancel a process and start anew so as to remedy a procedural breach and comply with the principles of equal treatment, transparency and open competition. In those circumstances, there would be no direct causal link between the breach which was the subject of the claim and the loss of profit claimed. It was irrelevant whether the contracting authority invoked the procedural error, leading to the cancellation of the process, at the beginning or a subsequent stage of that process.

Accordingly, it was permissible for a contracting authority to invoke as a defence, against a damages claim for loss of profit, an error as the reason for the cancellation of the tender process even if that error was not invoked during the tender process and was different from the error invoked by the claimant. However, it was for the contracting authority to demonstrate that there was such an error and that the decision to cancel the process as a result of it, complied with EEA law.

Whether the principle of equal treatment requires the effective verification of information contained in tenders

In considering this issue, the Court referred to principles already established by the CJEU in EVN20 and previous case law. First, the award criteria had to be formulated in such a way as to allow all reasonably well-informed tenderers of normal diligence to interpret them in the same way. Separately, an objective and transparent evaluation of tenders required that a contracting authority verified effectively the accuracy of information which thy contained, and whether they met the award criteria. That meant that the contracting authority had to determine whether the information provided was "plausible", in particular that the tenderer would be able to deliver what it had offered in its tender and that the tender corresponded to the contracting authority’s requirements.21

At the same time, and in line with the principle of proportionality, the verification requirement could not go as far as requiring the contracting authority to determine with an accuracy that came close to certainty whether all the information provided in a tender was "unequivocal". In addition, a tender had to be viewed as a whole rather than as consisting of separate or independent parts. That meant that, as long as the same documentation was requested from all tenderers and all tenderers were treated equally, the contracting authority could have regard to any information provided in the tender in order to verify effectively the extent to which a tender met the award criteria.22

Comments

The imposition of conditions for claiming damages

As noted above, the Court concluded that the Remedies Directive does not permit the imposition of conditions for claiming damages so that, in principle, any procurement law breach can give rise to a damages claim.

The Court reached this conclusion essentially by interpreting purposively the legislation: the Remedies Directive aims at protecting tenderers from the arbitrary behaviour of contracting authorities and seeks to ensure the effective application of EEA rules in the award of public contracts. In order to achieve this, the legislation makes provisions for, among other things, the power to award damages to those harmed by an infringement of public procurement law. In this regard, the Court also considered it relevant that the Remedies Directive does not indicate in any way that for the right to damages to arise the infringement at issue should have special features.

Separately, in seeking to interpret the Remedies Directive "in the light of the fundamental rights, in particular the right to an effective judicial remedy" the Court considered relevant that the CJEU had already established in Commission v Portugal and Strabag that a national rule making the award of damages conditional on proof of fault or fraud was not permissible as it would make actions for damages more difficult and costly, thereby impairing the full effectiveness of the public procurement rules. The same reasoning had to apply in relation to national rules which sought to limit the remedy of damages to only a specific type of public procurement law breaches.

The Court also considered that limiting the availability of damages would affect adversely the deterrent effect of the public procurement remedies system and undermine substantially the goal of effective and rapid judicial protection. In addition, it would interfere with the objectives pursued by the 2004 Directive, to guarantee the right to provide services and to ensure undistorted competition in the public procurement markets. In the light of these considerations, the Court concludes that "the gravity of a breach of the EEA rules on public contracts is irrelevant for the award of damages".

As noted earlier, the Court’s decision on this point is of particular interest given that it is at odds with the Supreme Court’s decision in EnergySolutions. In that case, the Supreme Court considered that the CJEU’s decision in Spijker23 provided "very clear authority"24 that the liability of a contracting authority under the Remedies Directive could only be established when the conditions for Member State liability were met, including the requirement that the breach was sufficiently serious. Indeed, the Supreme Court considered that the clarity of EU law on this point was such as not to call for any reference to the CJEU: "the Supreme Court can be safe in relying on the clear language and ruling in Spijker as settling the position, whatever may have been previous doubts or differences of view at national level".25

The Supreme Court’s conclusion on this point has not been without its critics and has led to a lively debate amongst public procurement lawyers in the UK and elsewhere. Indeed, arguably, a fair criticism of the Supreme Court’s decision lies in the certainty with which it concluded that Spijker sets out the correct interpretation of EU law on the question of whether liability for damages can only arise in relation to certain breaches of procurement law and that there is either no inconsistency between Strabag and Spijker or that to the extent that there might have been, the correct position had been settled with the slightly more recent judgment in Spijker.26

It is the author’s view that there is in fact an apparent inconsistency between Strabag and Spijker which the Supreme Court’s decision does not address or explain satisfactorily.27 Indeed, the referring court’s difficulty in reconciling the CJEU’s judgments in Strabag, and the earlier Commission v Portugal case on the one hand, and Spijker on the other, was one of the key reasons for this reference to the EFTA Court.

Apparent inconsistencies in CJEU rulings are of course nothing new. These often come about as a result of the facts of different cases being sufficiently different to warrant different approaches. Alternatively, such inconsistencies might arise as a result of the CJEU considering it appropriate to adopt a different approach in view of other relevant aspects of the law having been clarified in the meantime. However, sometimes – as in the case of Strabag and Spijker – the reasons for the inconsistency are less clear so that the correct legal position cannot be said to have been established unless the CJEU itself provides the additional clarity (often as a result of references for preliminary rulings) or the legislators clarify the position by amending the relevant legislation.28

Separately, even if we were to accept that there is no inconsistency between Strabag and Spijker, a key problem with accepting the Supreme Court’s view that Spikjer sets out the correct approach to the question of whether only certain type of public procurement law infringements should give rise to damages, is that it is an interpretation which would seem to be inconsistent with a literal reading of the Remedies Directive.29 At the same time, it is an interpretation which would also seem to disregard the underlying aims of procurement legislation and its remedies regime. Indeed, the apparent inconsistency of Spikjer itself with either a literal or a purposive30 interpretation of the law should have been a sufficient reason for the Supreme Court to have sought a reference to the CJEU.

Ultimately, the arguments advanced by the EFTA Court in reaching its conclusion on the question of whether the availability of damages can be made subject to certain conditions, would seem difficult to refute, unless one is prepared to argue that the type of effectiveness which the EFTA Court considers as necessary to ensure compliance with the requirements of the Remedies Directive is excessive and disproportionate and should be scaled back. The argument that it is and that it should, would seem all the more difficult to accept in a UK context where a number of not insignificant difficulties have already been identified in relation to seeking a remedy for breaches of public procurement law.31

Indeed, the number of procurement law cases which have led to the award of damages in the UK courts in the past 30 years is comparatively low.32 That in itself is not necessarily an issue as ultimately the question of whether or not damages, and if so of what type and of what quantity, should be granted should be, as indeed it is, determined by reference to the question of causation. In the author’s view, this requirement provides in itself a sufficient safeguard to ensure that the availability of the remedy of damages for all breaches of procurement law should not have the effect of being disproportionate or unduly onerous on contracting authorities. At the same time, the availability, in principle, of damages for all public procurement law infringements allows the remedies system to function more effectively as a deterrent against breaches of the law.

In view of the contradictory nature of the EFTA Court’s and the Supreme Court’s judgements on this point, the question arises as to whether that effects in any way the current legal position in the UK. The short answer is that, it does not do so directly. More specifically, the EFTA Court’s interpretation of EU legislation is not binding on the courts of EU Member States. In theory, therefore, it would be perfectly legal for the UK courts to disregard the EFTA Court judgment and continue to apply the law on this point as interpreted by the Supreme Court.

At the same time, this inconsistency of interpretation raises sufficient doubts as to the correctness of the Supreme Court’s approach, not least, its view that the EU law on this point is clear, and—Brexit considerations aside—makes a reference to the CJEU for a preliminary ruling both appropriate and desirable.

Issues relating to the burden of proof

As noted above, the Court also concluded that it was acceptable for national law to require a claimant, seeking damages for loss of profit, to prove with "clear, that is, qualified preponderance of evidence" that, but for the contracting authority’s breach, the tenderer would have been awarded the contract. The Court concluded that this requirement was consistent with the principle of effectiveness in that it did not make it impossible or excessively difficult to obtain damages for loss of profit.

The concept of clear (or qualified) preponderance of evidence is not one which would be familiar to UK procurement lawyers. It appears that this is a standard of evidential proof which is higher than the "balance of probabilities" test in that it would seem to require evidence that an allegation is substantially more likely than not to be true.

It should be recalled that in the UK, in public procurement cases the courts can assess the question of whether, as a result of a procurement law breach, the claimant should recover lost profits by reference to the principle of "loss of a chance".33 Essentially, this means that for causation to be established it is not necessary to demonstrate that, absent the breach in question, the contract would have been awarded to the claimant. Instead, it is sufficient to demonstrate that (on the basis of the standard civil liability "balance of probabilities" test), but for the breach, there was a real or substantial chance of the contract being awarded to the claimant. The likelihood of success is then taken into account in the quantification of damages.

It is generally accepted that the burden of proof test applied by the UK courts in this context is in fact consistent with the principle of effectiveness34 and indeed, this case would seem to support further this conclusion.

As we saw, the Court also clarified that while a claimant should not be denied bidding costs because the contracting authority cancelled a defective process, other factors might also be relevant in determining whether or not a damages claim should be successful, such as the question of whether the bid was submitted in good faith. However, such other factors must be consistent with the principle of effectiveness.

In this case, the contracting authority tried to argue that the claimant should be denied bidding costs because when it bid, the claimant was aware that one of the award criteria was unlawful. The Court does not reject the logic of this argument but on the facts concludes that it was unlikely that a well-informed tenderer of normal diligence could have been aware of the unlawfulness of the award criterion at issue.

The Court also considered that there would be no direct causal link between the breach which was the subject of the claim and the loss of profit claimed if the contracting authority actually cancels that process as a result of having identified some other procedural breach. This conclusion would seem uncontroversial as the alternative would involve either not permitting the contracting authority to cancel a defective process in these circumstances or for the court to ignore the procedural defect and award damages for loss of profit where there is evidence that, but for the breach complained of, the otherwise defective process would have led to the claimant being awarded the contract. Both of these alternative approaches would clearly be problematic.

Verification of information in tenders

By reference primarily to EVN,35 the Court concludes that a contracting authority must verify effectively the accuracy of information contained in tenders, so as to determine whether this was plausible in that the tenderer can deliver what it offered in its tender, and the tender meets the award criteria and the contracting authority’s requirements.

It would be recalled that in EVN the CJEU concluded, among other things, that award criteria had to be "accompanied by requirements" which permitted the information provided by tenderers to be verified effectively.36 What that means in practice is that a contracting authority must require tenderers to provide in their tenders the type of information which will enable it to assess as to whether or not a tenderer can deliver what it promises it would deliver in its tender.

In other words, it is incompatible with the principle of equal treatment for a contracting authority: (a) to be evaluating tenders by taking the promises that bidders make in their tenders at face value, and (b) not to be requiring tenderers, in the first place, to provide in their tenders the type of information which will enable the contracting authority to assess whether their proposals are deliverable.37

These "EVN principles" are now set out in a modified form in the 2014 Directive. According to art.67(4) of that Directive, the award criteria must:

"be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria. In case of doubt, contracting authorities shall verify effectively the accuracy of the information and proof provided by the tenderers."

This provision sets out explicitly that a contracting authority must require tenderers to provide the type of information which will enable it to verify effectively the deliverability of their proposals, that it has an obligation to carry out such verification in evaluating tenders, but that, also, where there is doubt as to the accuracy of the information provided by the tenderer, it must carry out appropriate investigations to verify effectively the accuracy of that information.

In this regard, it is relevant to recall the Court’s conclusion that the verification requirement must comply with the principle of proportionality. This must essentially mean two things: first, that the evidential requirement on tenderers to demonstrate the deliverability of their proposal should not be excessive38 and that, in verifying effectively the evidence put forward by tenderers, a contracting authority should not be required to reach views as to the validity of that information with near certainty.

Separately, in evaluating tenders, the Court considered that a tender should be viewed as a whole, rather than as consisting of separate and independent parts. That meant that the contracting authority could take into account any documentation in a tender, as long as it has requested the same documentation from all tenderers and treated all tenderers equally.

Ultimately, this conclusion would seem to be based on the principle of proportionality, making it easier for tenderers to demonstrate compliance with the contracting authority’s requirements and award criteria. However, this approach is not without its problems. This is because, in practice, contracting authorities would normally require tenders to be set out in a structured way, with different sections of a tender dealing with different aspects of the contracting authority’s requirements and corresponding to different award criteria. This is particularly important in relation to tenders for complex requirements where tender submissions can easily run into many hundreds of pages. In such a context, it would seem disproportionate that a contracting authority should be required to identify what other information in other sections of a tender might in fact be of relevance to the evaluation of a particular aspect of a tender. This is even more problematic in cases where different evaluators (with the relevant experience) are responsible for the consideration and evaluation of different aspects of tenders. Such an approach would entail requiring each evaluator to consider the tender in its entirety so as to check whether other parts of the tender might contain information which is also relevant to a particular aspect of the requirement (and the evaluation).

Accordingly, arguably, the Court’s conclusion on this point might be deemed to be consistent with the proportionality principle only in cases where, in view of the requirement being tendered, such an approach does not impose a disproportionate burden on the contacting authority.

In practice, such concerns should in general be easy to address by requiring tenderers to identify in their tenders all the specific paragraphs or sections in their tenders which would be relevant to the assessment of a particular aspect of a contracting authority’s requirement.

Totis Kotsonis’s article first appeared in the Public Procurement Law Review 2018, 2, NA60-NA69.

 


 

  1. Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L395/33.
  2. Nuclear Decommissioning Authority (Appellant) v EnergySolutions EU Ltd (now called ATK Energy EU Ltd) (Respondent) [2017] UKSC 34.
  3. Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] OJ L134/114, and Norwegian EEA Supplement 2009 No.34, p.216.
  4. Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [2014] OJ L94/65.
  5. In cancelling the original tender process, AtB entered into a shorter two-year ferry service contract with Norled and, announced that it would conduct a new tender process for the operation of the same ferry service from 2019 to 2029. Fosen-Linjen did not submit a bid for that process.
  6. Brasserie du Pêcheur and Bundesrepublik Deutschland (Joined Cases C-46/93 and C-48/93); and R v Secretary of State for Transport, Ex p. Factortame [1996] E.C.R. I-1029.
  7. Brasserie du Pêcheur established that Member State liability for violation of EU law arises where (a) the rule of EU law breached is intended to confer rights on individuals; (b) the breach is sufficiently serious; and (c) there is a direct causal link between the breach and the damage sustained.
  8. "Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to … award damages to persons harmed by an infringement".
  9. At [70] by reference to Combinatie Spijker Infrabouw (C-568/08) [2010] E.C.R. I-12655, at [90] and case law cited in that case.
  10. At [71] by reference to Strabag (C-314/09) [2010] E.C.R. I-8769, at [35].
  11. At [72].
  12. At [79].
  13. Strabag at [39].
  14. Commission of the European Communities v Portuguese Republic (C-70/06) [2008] E.C.R. I-00001.
  15. At [77] by reference to Commission v Portugal at [42], and Strabag at [45].
  16. This is presumably on the basis that courts in different EEA states might interpret differently what infringements should be deemed to be sufficiently serious.
  17. Gesellschaft fr Abfallentsorgungs-Technik (GAT) v Österreichsche Autobahnen und Schnellstraßen (C-315/01) [2003] E.C.R. I-6351
  18. "Contracting authorities shall as soon as possible inform candidates and tenderers of decisions reached concerning the conclusion of a framework agreement, the award of the contract or admittance to a dynamic purchasing system, including the grounds for any decision not to conclude a framework agreement or award a contract for which there has been a call for competition …".
  19. By reference to Hospital Ingenieure Krankenhaustechnik Planungs-Gesellschaft mbH (HI) v Stadt Wien (C-92/00) [2002] E.C.R. I-05553.
  20. EVN AG and Wienstrom GmbH v Republik Österreich (C-448/01) [2003] E.C.R. I-14527.
  21. At [121].
  22. The exact wording of the Court is somewhat different ("in order to make an effective verification of the information linked to the award criteria") but the Court’s consideration of this issue, and its earlier comments on this point, clearly suggest that this is the correct interpretation of this conclusion.
  23. Combinatie Spijker Infrabouw-De Jonge Konstruktie v Provincie Drenthe (C-568/08) [2010] E.C.R. I-12655.
  24. EnergySolutions at [25].
  25. EnergySolutions at [27].
  26. The judgment in Strabag was given on 30 September 2010, whereas the judgment in Spijker on 9 December 2010.
  27. It is interesting to note also the European Commission’s position on this point according, to which the Spijker judgment was appropriate but, essentially, of a narrow application to the particular (and unusual) facts of that case.
  28. Another interesting example of seemingly contradictory approaches on the question of the definition of a concession contract may be found in Eurawasser (C-206/08) [2009] E.C.R. I-8377, and Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik v AOK Rheinland/Hamburg (C-300/07) [2009] E.C.R. I-4779. The contradiction between these two cases is discussed in the author’s case note on "The role of risk in defining a services concession contract: Wasser und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH (C-206/08) (WAZV)" (2010) 19 P.P.L.R. NA4-12. The position has now been settled with the clarifications given on the definition of a concession contracts in Directive 2014/23.
  29. As the EFTA Court noted in its judgment, the Remedies Directive does not lay down any conditions for the award of damages nor does it indicate in any way that the breach of public procurement law liable to give rise to a right to damages should have specific features. (At [69] and [71] of the judgment.)
  30. The adoption of a "purposive" (also referred to as teleological) interpretation of the law is of particular importance in the context of interpreting EU law. See for example, Hans Hönig v Stadt Stockach (C-128/94) [1995] E.C.R. I-3389, at [9] and the case law cited in that paragraph. For a convenient summary of the reasons why a purposive approach is particularly important for the interpretation of EU law refer to the European Commission summary report on "How to interpret legislation which is equally authentic in twenty languages: Lecture by Advocate General Francis Jacobs, Brussels, 20 October 2003", dated 26 November 2003.
  31. S. Arrowsmith and R. Craven, "Public procurement and access to justice: a legal and empirical study of the UK system" (2016) 25 P.P.L.R. 227–252.
  32. See also the Commission Staff Working Document annexed to the proposal for a directive to amend Council Directives 89/665/EEC and 92/13/EEC CEE with regard to improving the effectiveness of review procedures concerning the award of public contracts (SEC(2006) 557, 4 May 2006), in particular s.4, which also refers to the actions for damages for breaches of procurement law in the UK.
  33. Harmon CFEM Facades (UK) Ltd v The Corporate Officer of the House of Commons (1999) 67 Con. L.R. 1, (2000) 2 L.G.L.R. 372, at [237]–[239].
  34. See also the Advocate General’s Opinion in Gesellschaft fr Abfallentsorgungs-Technik (GAT) v Osterreichsche Autobahnen und Schnellstrassen AG (C-315/01) ECR [2003] I-6351, at [60]–[66].
  35. EVN AG and Wienstrom GmbH v Republik Österreich (C-448/01) [2003] E.C.R. I-14527.
  36. EVN at [52].
  37. "Where a contracting authority lays down an award criterion indicating that it neither intends, nor is able, to verify the accuracy of the information supplied by the tenderers, it infringes the principle of equal treatment, because such a criterion does not ensure the transparency and objectivity of the tender procedure": EVN at [51].
  38. It should be noted that the Court seems to suggest that this should be the case at [122] but does not refer to this point in its conclusion on this issue at [124] and at [4] of its "Advisory Opinion" at the end of the judgement.

 

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