Opinion of the Advocate General — ECLI:EU:C:2023:967
Date: 2023-12-07
Language of the case: Slovak
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Slovakia

Summary C-547/22–1 
Case C-547/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
17 August 2022 
Referring court: 
Okresný súd Bratislava II (Slovakia) 
Date of the decision to refer: 
22 July 2022 
Applicant: 
INGSTEEL spol. s. r. o. 
Defendant: 
Slovak Republic represented by the Úrad pre verejné obstarávanie 
  
Subject matter of the main proceedings 
Compensation for damage caused in the exercise of public authority as a result of 
an unlawful decision to exclude a tenderer from a public procurement procedure, 
with the damage consisting in the loss of opportunity to earn profit by performing 
the contract. 
Subject matter and legal basis of the request 
A request for interpretation, under Article 267 TFEU, of Article 2(1)(c), read in 
conjunction with Article 2(6) and (7) 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, 1 as amended by Directive 2007/66/EC of the 
European Parliament and of the Council of 11 December 2007 amending Council 
 
1 OJ 1989 L 395, p. 33; Special Edition No 06/001, p. 246. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING OF 22. 7. 2022 – CASE C-547/22 
 
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Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness 
of review procedures concerning the award of public contracts . 2 
Questions referred 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 [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, as amended by 
Directive] 2007/66/EC of the European Parliament and of the Council of 
11 December 2007 …? 
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 [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, as amended by 
Directive] 2007/66/EC of the European Parliament and of the Council of 
11 December 2007 …? 
Provisions of European Union law relied on 
1 Directive 89/665 as amended by Directive 2007/66: Article 2(1)(c), 2(6), 2(7). 
2 Articles 19(3) and 267 of the Treaty on the Functioning of the European Union. 
Provisions of national law relied on 
3 Ústava Slovenskej republiky č. 460/1992 Zb. (Constitution of the Slovak 
Republic): 
– Article 7(2), pursuant to which the Slovak Republic may … transfer the 
exercise of a part of its powers to the European Communities and the European 
Union. Legally binding acts of the European Communities and of the European 
Union have precedence over laws of the Slovak Republic. The transposition of 
 
2 OJ 2007 L 335, p. 31. 
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legally binding acts which require implementation is realised through a law or a 
regulation of the Government …; 
– Article 144(1), pursuant to which judges, in the performance of their function, 
are independent and, in decision making are bound by the Constitution, by 
constitutional laws, by international treaty pursuant to Article 7(2) and (5), and 
by law. 
4 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): 
– Paragraph 1(a), pursuant to which the law establishes state liability for damage 
caused by public authorities in the exercise of public authority; 
– Paragraph 3(1)(a), pursuant to which the state is liable for damage that was 
caused by public authorities as a result of an unlawful decision;  
– Paragraph 3(2), pursuant to which that liability cannot be waived; 
– Paragraph 5(1), pursuant to which the right to compensation for damage caused 
as a result of an unlawful decision is vested in the participant to the 
proceedings who suffered damage as a result of a decision issued in those 
proceedings; 
– Paragraph 6(1), pursuant to which the right to compensation for damage caused 
as a result of an unlawful decision can be invoked, in principle, only if the final 
decision that resulted in the damage has been set aside or amended due to its 
being unlawful by the competent authority; the court ruling on compensation is 
bound by the decision of that authority; 
– Paragraph 15(1), pursuant to which, when a claim for compensation for damage 
caused as a result of an unlawful decision is made, a written request from the 
injured party must first be submitted to the competent authority; 
– Paragraph 16(4), pursuant to which, if the competent authority fails to settle the 
claim for compensation or only settles part of that claim within six months 
from the date of receipt of the request, or if the competent authority notifies the 
injured party in writing that it will not settle the claim for compensation, the 
injured party may seek settlement of the claim or the unsatisfied part thereof in 
court; 
– Paragraph 17(1), pursuant to which compensation is to be awarded in respect of 
actual damage and lost profits unless special provisions stipulate otherwise. 
5 Zákon č. 40/1964 Zb. Občiansky zakonnik (Law No 40/1964 – the Civil Code): 
Paragraph 442(1), pursuant to which, when compensating for damage, 
compensation is to be awarded in respect of actual damage and lost profits. 
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6 Zákon č. 25/2006 Z. z. o verejnom obstarávaní (Law No 25/2006 on Public 
Procurement, ‘the ZoVO’): 
– Paragraph 27(1)(a), pursuant to which financial and economic standing can 
generally be demonstrated by way of a statement from a bank or branch of a 
foreign bank, which may be a loan commitment from the bank or branch of a 
foreign bank; 
– Paragraph 28(1)(b), pursuant to which technical or professional capacity can be 
demonstrated by way of a list of construction works carried out together with 
certificates of their proper performance; 
– Paragraph 33(1), pursuant to which the contracting authority evaluates whether 
the conditions for participation in the procurement procedure are met in 
accordance with the contract notice and the tender documents; if the conditions 
for participation in the procedure are stipulated in the tender documents, these 
must not contradict the contract notice; 
– Paragraph 33(6), pursuant to which the contracting authority excludes a 
contractor or interested party from the procurement procedure if: 
(a) it has not met the conditions for participation; 
(b) it has submitted invalid documents; 
(c) it has not, following a written request, submitted clarifications or 
supplemented the documents submitted within the prescribed period; 
or 
(d) it has provided false or distorted information. 
Succinct presentation of the facts and procedure in the main proceedings 
7 The contracting authority – the Slovenský futbalový zväz (Slovak Football 
Association, ‘the SFZ’) – excluded the applicant from the ‘Reconstruction, 
modernisation and construction of football stadiums’ tender procedure announced 
in the Official Journal of the European Union on 16 November 2013 under 
No 2013/S 223-387597 (‘the procurement procedure’) due to its failure to meet 
the conditions for participation regarding: (i) financial and economic standing 
pursuant to Paragraph 27(1)(a) of the ZoVO; and (ii) technical and professional 
capacity pursuant to Paragraph 28(1)(b) of the ZoVO. 
8 The applicant appealed against the exclusion to the Úrad pre verejné obstarávanie 
(the Public Procurement Office, ‘the ÚVO’), which, by decision dated 9 May 
2014, ordered the SFZ to: (i) remove the basis for exclusion regarding the failure 
to meet the condition of technical or professional capacity; and (ii) continue the 
procurement procedure. 
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9 Since the ÚVO did not order the removal of the basis for exclusion regarding the 
failure to meet the condition of financial and economic standing, the applicant 
appealed the decision to the ÚVO Board. Following the decision of 7 July 2014 
dismissing its appeal, the applicant lodged an action with the Krajský súd v 
Bratislave (Bratislava Regional Court), seeking a review of the lawfulness of the 
ÚVO Board’s decision. 
10 The Bratislava Regional Court dismissed the applicant’s action in a judgment 
dated 13 January 2015. The applicant appealed that judgment to the Najvyšší súd 
Slovenskej republiky (Supreme Court of the Slovak Republic, ‘the NSSR’), which 
requested a preliminary ruling from the Court of Justice concerning an 
interpretation of EU law in the area of public works contracts. 
11 Following the judgment of the Court of Justice of 13 July 2017, INGSTEEL and 
Metrostav, C-76/16, the NSSR annulled both the ÚVO Board’s decision and the 
ÚVO decision and referred the case back to the ÚVO. On 3 April 2018, the ÚVO 
issued a new decision, ordering that the SFZ’s exclusion of the applicant from the 
procurement procedure be annulled.  
12 Since the procurement procedure had already been completed and a framework 
agreement had been concluded with the only remaining tenderer, the applicant 
brought a claim for damages caused by the unlawful decision of the ÚVO and the 
unlawful decision of the ÚVO Board before the referring court, which requested a 
preliminary ruling. 
The essential arguments of the parties in the main proceedings 
13 In essence, the applicant alleges that as a result of the unlawful decision, it has 
suffered damage consisting in the loss of opportunity to earn profit. Apart from 
the applicant, only one other tenderer submitted a tender, and that tender was 
supposedly less favourable. The applicant argues that had it not been unlawfully 
excluded, it would have been the winning tenderer. In its view, this establishes a 
causal link between the unlawful decision and the damage suffered. 
14 Pursuant to national regulations, compensation is awarded in respect of actual 
damage and lost profits. Actual damage is a reduction in the injured party’s assets. 
Lost profits mean that there will not be an increase in assets that would have been 
normally expected. On the basis of an expert opinion, the applicant estimated its 
lost profits at EUR 819 498.10, excluding value-added tax. In addition, it is 
seeking reimbursement for the cost of the expert opinion. 
15 The SFZ disagrees with the applicant’s arguments. The evaluation of selection 
criteria is only the first stage of the procurement process. Subsequently, it is 
verified whether the tender corresponds to the subject matter of the contract and 
whether the price offered is not excessively low. The applicant’s tender was not 
examined in that regard. The applicant’s participation in the procedure would not 
automatically have led to the contract being awarded to the applicant. Therefore, 
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the applicant cannot prove that it has a claim to conclude a framework agreement 
with the SFZ. 
16 Moreover, the SFZ further argues that once the framework agreement was 
concluded, it was not obliged to procure construction work, that is to say, to 
exhaust the entire amount stipulated in the framework agreement. The SFZ argues 
that lost profits have been quantified on the basis of fictitious data and that the 
claim for damages is purely hypothetical. In doing so, the SFZ points to the Court 
of First Instance’s judgment of 17 March 2005, AFCon Management Consultants, 
T-160/03, from which it supposedly follows that compensation for lost profits 
must be denied on the grounds that those are purely hypothetical, since it cannot 
be demonstrated that under the procurement procedure, a contract would actually 
have been concluded with the applicant in the case in question. 
17 The applicant responds that it is objectively impossible to prove lost profits with 
100% certainty. The procurement procedure was tainted by the SFZ’s unlawful 
decision and that unlawful act can no longer be reversed. It also disagrees that its 
claim is hypothetical in nature. On the contrary, it emphasises that it would have 
been reasonable to expect an increase in its assets had the unlawful decision not 
been issued. 
18 The applicant disagrees with the position that even as the winning tenderer, it 
would not have a claim for the conclusion of the framework agreement and for the 
performance of the entire contract. After all, the SFZ was obliged to enter into an 
agreement with the selected tenderer pursuant to the law. The applicant adds that 
the magnitude of the order has not changed; the SFZ expects it to be carried out 
and uses a certain amount of funds in that connection. 
19 The applicant clarifies that it has a claim for the loss of opportunity, which stems 
from Directive 89/665 as amended by Directive 2007/66. In its view, that claim is 
essentially a special type of claim for compensation for lost profits under national 
law. 
20 According to the applicant, the well-established case-law of the Court of Justice in 
the area of procurement procedures has long been that a tenderer unlawfully 
excluded from a procurement procedure has the right to claim damages for the 
loss of opportunity to perform the contract. That claim cannot be equated with loss 
of profit since it concerns a probable profit related to a lost opportunity, and in 
that situation a lower probability of achieving an increase in assets is sufficient. 
Thus, the issue at stake is compensation for the opportunity to earn profit, and not 
compensation for the profit itself. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
21 The national court considers it beyond dispute that the applicant was excluded 
from the procurement procedure by way of an unlawful decision. It is also beyond 
dispute that following the announcement of the NSSR judgment in 2018, it was no 
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longer possible to allow the applicant to participate in the procurement procedure, 
as it had already been completed. 
22 The national court has doubts about the compatibility of Paragraph 17(1) of the 
Law on liability for damage caused in the exercise of public authority with 
Article 2(1)(c), read in conjunction with Article 2(6) and (7) of Directive 89/665 
as amended by Directive 2007/66. In essence, the preliminary ruling is to clarify 
whether the loss of opportunity to participate in the procurement procedure is also 
part of the damage to be compensated.