Opinion of Advocate General Collins delivered on 7 December 2023.

• Jurisdiction: European Union
• Celex Number: 62022CC0547
• ECLI: ECLI:EU:C:2023:967
• Date: 07 December 2023
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 7 December 2023 (1)

Case C‑547/22

INGSTEEL spol. s. r. o.

v

Úrad pre verejné obstarávanie

(Request for a preliminary ruling from the Okresný súd Bratislava II (District Court, Bratislava II, Slovakia))

(Reference for a preliminary ruling – Public procurement – Review procedures – Directive 89/665/EEC – Non-contractual liability of Member States – Action for damages for breach of EU law by an unsuccessful tenderer – Quantification – Loss of profit – Loss of opportunity)

I.Introduction

1. Does EU law require Member States to admit a claim in damages for loss of opportunity by a tenderer unlawfully excluded from a procedure for the award of a public contract where that procedure has concluded and a contract entered into with the successful tenderer? The answer to that question requires the Court of Justice to determine whether the laws of the Member States regulate the award of damages to which Article 2(1)(c) of Council 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 (2) refers. If so, the Court must examine the consequences of the requirement that those laws must comply with the principle of effectiveness.

II.Legal framework

A.European Union law

2. The preamble of Directive 89/665 contains the following text:

‘Whereas in certain Member States the absence of effective remedies or inadequacy of existing remedies deter Community undertakings from submitting tenders in the Member State in which the contracting authority is established; whereas, therefore, the Member States concerned must remedy this situation;

…

Whereas it is necessary to ensure that adequate procedures exist in all the Member States to permit the setting aside of decisions taken unlawfully and compensation of persons harmed by an infringement.’

3. Under the fourth paragraph of Article 1(1) of Directive 89/665:

‘Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive 2014/24/EU or Directive 2014/23/EU, decisions taken by contracting authorities may be reviewed effectively …’

4.Article 1(3) of Directive 89/665 provides:

‘Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement.’

5. Under Article 2(1) of Directive 89/665:

‘Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for powers to:

…

(c) award damages to persons harmed by an infringement.’

B.Slovak law

6. Paragraph 3(1)(a) of Zákon č. 514/2003 Z. z. o zodpovednosti za škodu spôsobenú pri výkone verejnej moci (Law No 514/2003 on liability for damage caused in the exercise of public authority; ‘Law No 514/2003’) provides that the State is liable for damage caused by public authorities as a result of an unlawful decision.

7. Under Paragraph 5(1) of Law No 514/2003, a party to a procedure which suffered damage as a result of an unlawful decision issued in that procedure has a right to compensation.

8. Paragraph 17(1) of Law No 514/2003 establishes that compensation shall be awarded for actual damage and loss of profits, unless otherwise stipulated by special provisions.

9. Paragraph 442(1) of Zákon č. 40/1964 Zb. Občiansky zakonnik (Law No 40/1964 on the Civil Code; ‘the Civil Code’) provides that, in actions for damages, compensation shall be awarded for actual damage and loss of profits.

10. Zákon č. 25/2006 Z. z. o verejnom obstarávaní (Law No 25/2006 on public procurement) does not appear to contain any specific provisions that govern actions for damages arising from the award of public contracts.

III.The dispute in the main proceedings, the request for a preliminary ruling and the procedure before the Court

11. In 2013, the Slovak Football Federation published a call for tenders for the award of a contract for the construction, restructuring and modernisation of football stadiums. INGSTEEL spol s.r.o. (‘Ingsteel’), an undertaking active in the building sector, participated in that award procedure. The Slovak Football Federation excluded Ingsteel from that procedure on the ground that it failed to satisfy the economic and financial requirements in the call for tenders. Ingsteel brought an action to challenge the legality of that decision, in the course of which the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) sought a reference for a preliminary ruling from the Court of Justice.

12. In its judgment of 13 July 2017 in INGSTEEL and Metrostav (C‑76/16, EU:C:2017:549), the Court held that Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (3) must be interpreted as meaning that, where a call for tenders requires the provision of a statement from a bank undertaking to grant credit to a tenderer and the banks approached by that tenderer refuse to provide such a statement, that tenderer may be permitted to prove its economic and financial standing by other appropriate means. In view of the Court’s judgment, the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) concluded that the decision to exclude Ingsteel was unlawful and annulled it. It then referred the case to the Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority, Slovakia) to take appropriate measures.

13. Since the procedure for the award of the public contract had concluded and the contracting authority had entered into a framework agreement with the successful tenderer, Ingsteel brought an action against the Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority) in which it claimed, inter alia, damages for the loss of opportunity to win the tender. It argued that loss of opportunity and loss of profit are two different heads of claim. It appears that, under Slovak law, the standard of proof to show that damage is sufficiently foreseeable is lower with respect to claims for loss of opportunity than with respect to claims for loss of profit.

14. The Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority) is of the view that Ingsteel’s claim for damages is hypothetical. There was no guarantee that Ingsteel would have been selected as the successful tenderer or that, had it been selected, the contracting authority would have concluded a contract with it.

15. The Okresný súd Bratislava II (District Court, Bratislava II, Slovakia) wonders whether Directive 89/665 requires it to admit a claim for an award of damages for loss of opportunity by a tenderer where a court has set aside a decision to exclude it from a procedure that led to the award of a public contract and the contracting authority concluded a contract with another tenderer. It decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the practice of a national court hearing a dispute involving a claim for compensation for damage caused to a tenderer who was unlawfully excluded from a public procurement procedure, pursuant to which compensation for loss of opportunity is denied, compatible with Article 2(1)(c), read in conjunction with Article 2(6) and (7), of [Directive 89/665]?

(2) Is the practice of a national court hearing a dispute involving a claim for compensation for damage caused to a tenderer who was unlawfully excluded from a public procurement procedure, pursuant to which a claim for lost profits caused by the loss of opportunity to participate in a public contract is not part of the claim for compensation, compatible with Article 2(1)(c), read in conjunction with Article 2(6) and (7), of [Directive 89/665]?’

16. The Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority), the Czech, French and Slovak Governments and the European Commission submitted written observations. At the hearing of 20 September 2023, the Czech and Austrian Governments and the Commission presented oral argument and replied to the Court’s questions.

IV.Assessment

A.Admissibility

17. The Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority) presents two reasons as to why the Court should declare the request for a preliminary ruling inadmissible. First, since Ingsteel participated in the award procedure jointly with Metrostav a.s., which is not a party to the proceedings before the referring court, it does not have standing to bring a damages claim. Second, since Ingsteel originally claimed damages for loss of profit, not loss of opportunity, it cannot make that claim at this stage of the proceedings before the referring court.

18. The Slovak Government also has doubts as to the admissibility of the questions in so far as the referring court appears to ask the Court of Justice whether Ingsteel’s damages claim ought to be allowed. Both the Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority) and the Slovak Government point out that it is for the referring court alone to adjudicate on the merits of Ingsteel’s claim.

19. According to settled case-law, in the context of the cooperation for which Article 267 TFEU provides, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions that it submits to...