A tenderer who has been unlawfully excluded from a call for tenders may claim damages for the loss of the opportunity to participate in the procedure for the award of a contract with a view to winning it, ruled the Court of Justice of the European Union (CJEU) in a judgment delivered on Thursday 6 June (Case C-547/22).
In Slovakia, the company INGSTEEL, which was part of a consortium that was wrongly excluded from a public procurement procedure for the renovation and construction of sixteen football stadiums, is claiming damages for the loss it claims to have suffered as a result of this exclusion.
The Slovak court has asked the CJEU whether the directive (89/665) governing review of the award of public contracts precludes national legislation which excludes the possibility for a tenderer who has been unlawfully excluded from a call for tenders to be compensated for the loss suffered as a result of the loss of opportunity to participate in that procedure with a view to obtaining the contract concerned.
The Court answers in the affirmative. The aforementioned directive requires compensation to be awarded, but does not establish any categories for the types of damage. It therefore includes the loss arising from the loss of the opportunity to participate in a procurement procedure.
See the Court’s judgment: https://aeur.eu/f/ckh (Original version in French by Mathieu Bion)