Opinion of the Advocate General — ECLI:EU:C:2010:515
Date: 2010-09-14
Language of the case: Dutch
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary;Reference for a preliminary ruling - inadmissible
Origin: Netherlands

summary procedure for interim measures which, independent as regards any proceedings as to the substance, is geared to their rapid adoption, making no provision for oral argument or for evidence other than documentary evidence and not subject to application of the general rules on evidence, is compatible with Article 1(1) and (3) and Article 2(1) and (6) of Directive 89/665, where, in addition, the judicial decision approving those interim measures does not lead to the final resolution of the legal situation or have erga omnes effect, since it binds only the parties to the proceedings. 48. Perhaps because of the pre-eminence that the Netherlands legal system confers on interim measures, of which the referring court is fully aware, the latter calls into question the procedural organisation of the system of interim judicial protection from the perspective of European Union law, exclusively on the basis of the reasons set out in the preceding paragraph. 49. From the outset, it must be pointed out that Directive 89/665 confers on the Member States broad discretion both as regards the choice of courts having jurisdiction to uphold the procedural guarantees conferred by it, and as regards their procedural organisation. 50. Accordingly, it is for the domestic legal system of each Member State, in the absence of European Union rules, to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the European Union, (22) subject always to the requirement to protect those rights in a manner consistent with the principles of effectiveness (23) and equivalence. (24) 51. It must be emphasised that the only conflicting criterion provided by the Rechtbank is that of Directive 89/665, which makes no provision in that respect, and accordingly there is no reason for censure, since the order for reference does not describe how that special procedural organisation has an adverse effect on the fundamental rights of individuals, in particular, on effective judicial protection, as a consequence, where appropriate, of infringement of the principles of equivalence and effectiveness. 52. Moreover, without examining the particular features of the evidence, the way in which the adversarial principle is formulated or the effects of the interim measures, (25) it seems logical that, because of its purpose and nature, the procedure for their adoption should differ from the procedure for ordinary proceedings, but it is also true that Directive 89/665 specifically encourages rapid interim judicial protection. That directive coordinates the laws of the Member States with the aim, inter alia, of securing the adoption of measures ‘at the earliest opportunity and by way of interlocutory procedures’. (26) 53. Moreover, Question 2(b) recalls the fact that ‘the decision [adopting the interim measures] does not form part of a decision‑making process leading to such a final [legal] decision’. 54. This qualification is concerned with the autonomous nature of interim proceedings within the framework for legal actions in the Netherlands which, far from being put forward as a ground for criticism for European Union law on public procurement, constitutes a requirement for the case-law which interprets it. In particular, by regarding proceedings for interim measures as merely ancillary to the substantive proceedings instead of actually regarding them as autonomous proceedings, the Court has allowed some actions for failure to fulfil obligations brought by the Commission. (27) 55. Similarly, the fact that the measures are adopted as interim measures reflects a provisional function, as is expressly illustrated by Article 2(1)(a) of the Directive, which refers to interim measures, (28) which implies that, in principle, the legal relationships to which they apply are not affected definitively. 56. In summary, some of those characteristics, described almost as abnormalities by the national court in Question 2, appear, instead, as characteristics inherent to interim measures. 57. I therefore suggest that the Court’s answer to Question 2 should be that, to the extent that it has not been established that the effectiveness of European Union law has been adversely affected, Article 1(1) and (3) and Article 2(1) and (6) of Directive 89/665 do not preclude national legislation providing for only one procedure for obtaining an interim measure, characterised by the fact that it is geared to their rapid adoption, that lawyers have no right to exchange views, that evidence is, as a rule, presented solely in written form and that statutory rules on evidence are not applicable (Question 2(a)), irrespective of whether the judicial decision adopting that interim measure does not lead to the final determination of the legal situation and does not form part of the process in which that legal situation is finally determined (Question 2(b)) or whether that decision is binding only on the parties to the proceedings (Question 2(c)). B – The tension between interim and substantive judicial protection: answer to Question 3 1. Preliminary considerations 58. In Question 3, the Court is asked to rule on whether it is compatible with Directive 89/665 for a court, in proceedings for interim relief, to order the contracting authority to take a contract award decision which is subsequently deemed, in proceedings on the substance, to be contrary to tendering rules under European Union law. 59. The parties involved in this reference for a preliminary ruling – apart from the Provincie – maintain that the interim order of 28 November 2007 did not in fact order the Provincie to award the contract to MFE, from which they conclude that that question must be reformulated, (29) since they consider that the Rechtbank’s wording is based on an incorrect premiss. 60. In this question, proceeding as the Commission and the Netherlands suggest would run the risk of distorting the national court’s intended meaning, since, that court, in reality, seeks an examination of what I have called the tension between interim and substantive judicial protection. 61. Since Article 267 TFEU is based on a clear separation of functions between the national courts and the Court of Justice, when ruling on the interpretation or validity of European Union provisions, the latter is empowered to do so only on the basis of the facts which the national court puts before it and it is for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver. (30) 62. I therefore consider that the Court cannot substitute its assessment for that of the Rechtbank, which would be the case if the Court reworded the question because it considered that the Rechtbank’s order for reference misinterpreted a previous judicial decision, (31) which, moreover, it had itself issued (as the court of the judge dealing with interim relief proceedings). Instead, it must limit itself to providing a helpful answer, comprehensively appraising the facts of the case. (32) 2. The differing views expressed in the interim measure and the substantive proceedings 63. The Rechtbank, in its view, in contrast to the order of the judge dealing with interim relief proceedings, considers in paragraph 4.18 of its order that ‘the decision taken by the Provinc[i]e to withdraw the contract award decision of 2 October 2007 and to call for fresh tenders [was] the only correct application of the law on public procurement’. 64. Accordingly, analysed from a literal perspective, Question 3 does not seem to raise too many uncertainties. 65. No matter how autonomous interim proceedings may be, decisions adopted in the course of such proceedings, in so far as they are merely temporary (ultimately they are provisional), may be revoked, amended or upheld in any substantive proceedings, provided that the person entitled to bring them does so, (33) and therefore any conflict should not raise problems. 66. This approach seems to be embodied in the order for reference itself (paragraph 4.18 in fine), where it states that the (final) judgment ‘will replace the view expressed by the judge dealing with interim relief proceedings’. 67. That being the case, it is then necessary to ask where the problem lies. The keys are provided by the order of the Rechtbank itself, which states that, where the interim measure and the court dealing with the substance express differing views, ‘[p]roblems arise [because t]here will … be two separate and distinct judicial decisions which differ, or may differ, in their effect on the parties to the proceedings and on third parties’ (paragraph 4.8), and because at the time of the final judgment ‘the contract will already have been awarded, the work may even have been completed, and all that will remain is the possible award of damages to the Combinatie’ (also paragraph 4.18 in fine). 68. To sum up, those concerns implicitly suggest another aspect which could operate as a limit to a negative response to Question 3: Directive 89/665 does not prevent a court, in interim relief proceedings, from ordering the contracting authority to take a contract award decision which is subsequently deemed, in proceedings on the substance, to be contrary to European Union law on public procurement, provided that the effects of that interim measure may be replaced by the new situation stemming from the decision on the substance. 69. In the final analysis, I cannot avoid concluding that in the Netherlands, during the period between communication of the award decision and the contract, interim measures seem to be the only remedy which would be effective in preventing conclusion of the contract, since there is no possibility of applying for the award decision to be set aside either before or after it is issued, as the Netherlands Government confirms. (34) On the contrary, under European Union law, the conclusion of the contract is, temporally and functionally, the key point for bringing an action to set aside the award decision, since, although European Union law does not require proceedings to set it aside once the contract has been concluded, it nevertheless requires that, prior to that moment, the Member States provide the injured party with the opportunity to bring proceedings to set aside the award decision. (35) 70. However, the fact that in the Netherlands, before the contract is concluded, the award decision is not subject to review – whether administrative or judicial – in the form of an annulment claim (36) is not particularly relevant in the circumstances of this case. (37) 71. This is because, first, it must be remembered that the Combinatie voluntarily withdrew its appeal before the Gerechtshof Leeuwarden and preferred to bring substantive proceedings for the award of damages, (38) and because, secondly, after applying for damages and in so far as the contract had already been concluded (on 3 December 2007), the action to set aside could not yet be required under Article 2(5) and (6) of Directive 89/665. The latter consideration also shows the insignificance of the views set out by the Rechtbank in paragraph 4.14 of its order, based on the appropriateness of ordering the setting aside of the award decision prior to the award of damages. (39) 72. However, it must be made clear that the two previous arguments are valid because, in this case and because of the way in which the Rechtbank worded its questions, there has been no breach of the principles of effectiveness and equivalence, the basic limits of the procedural autonomy of the States, hence the lack of provision for an action to set aside is not fundamental for the purposes of an answer. 73. In the light of all those considerations, I suggest that the Court should answer Question 3 to the effect that Directive 89/665 does not prevent the judge dealing with interim relief proceedings from taking a differing view to that of the court dealing with the substantive proceedings on the main issue, provided that this does not prejudice the results required by Directive 89/665 and, in particular, the three guarantees provided for in Article 2(1), as they have been interpreted in Community case-law. C – Determination of liability and its translation into an award of damages: answers to Question 4 and Question 5 1. The Court’s lack of jurisdiction to attribute liability in the dispute before the national courts 74. In Question 4, the Rechtbank asks the Court to rule on who may be deemed to be liable for any injury caused to the Combinatie, raising further questions on the possibility of declaring the contracting authority liable – both in the event that the answer to Question 3 is that the Netherlands system of interim measures is incompatible with Directive 89/665 (Question 4(a)) and in the event that it is found to be compatible (Question 4(b)) – and also raising the possibility of other parties being liable ‘[i]f the contracting public authority cannot be deemed liable’ (Question 4(d)). Question 4(c) is, at the outset, based on the premiss that ‘that authority is required to pay damages’ and goes on to request clarification concerning any criteria set by European Union law for determining and estimating those damages. 75. Question 5 functions as a type of conclusion to the preceding questions, since it seeks to ascertain ‘what … the national court [must] do’ where, in the light of the possible answers and pursuant to national law, ‘it … appears to be impossible, or extremely difficult … to attribute liability’. 76. I am of the view that the Court is unable to provide guidance to the Rechtbank concerning who is liable for any injury caused to the Combinatie by infringement of the tendering rules, since that constitutes the essence of the main proceedings. The reasons I gave above for rejecting the rewording of Question 3, which are based on the national court’s jurisdiction to assess the actual facts and circumstances of the dispute before it, now militate against the Court’s having jurisdiction to rule on the liability of the various operators involved in the tendering procedure for the works in Emmen. 77. In my view, it is solely for the Rechtbank to assess (40) points such as whether there was any liability and whether, where appropriate, it must be attributed to the Provincie, to the State – on account of the actions of the judge dealing with interim relief proceedings – or to any other person taking into consideration the evidence which has been shown to be relevant: the fact that the Provincie did not wait before making the award or appeal against the interim measures; the possible alternatives (if any) to making the award to MFE; the circumstances surrounding the provisional enforcement of the order of the judge dealing with interim relief proceedings, and; the Combinatie’s voluntary withdrawal of the appeal lodged against that order. 78. Moreover, in so far as the action in the national proceedings may be based on infringement of European Union law, whether that is established (41) – which is most relevant in this case – is a matter solely for the Member State in the context of its national law on liability for financial loss. (42) 79. Accordingly, I consider that the Court should not answer the sections of Questions 4 and 5 which request a ruling on who must be deemed liable in the dispute before the national courts. 2. The criteria governing the attribution and the extension of the damage 80. Notwithstanding the foregoing, the Court must clarify for the Rechtbank whether European Union law provides criteria for determining, attributing and, finally, quantifying the damage. a) Some preliminary considerations 81. It is necessary to clarify, from the outset, what the Rechtbank means when it asks the Court in Question 4(c) whether, ‘[i]f [the contracting public] authority is required to pay damages’, European Union law sets criteria for determining and estimating the damages. 82. In principle, it may be concluded that the Rechtbank assumes that the answer the Question 4(c) will be in the affirmative and that the contracting body is liable. 83. None the less, that approach should not prevail, in so far as, although the Rechtbank limits Question 4(c) to the premiss that the Provincie may be liable, it remains true that its considerations do not rule out the possibility that liability may lie with other operators who, in one way or another, have been involved in the tendering procedure, and accordingly it is actually possible to interpret the national court’s question as seeking to ascertain, generally, the criteria established in European Union law on public procurement for the award of compensation in connection with liability. 84. It must not be forgotten that the proper determination of liability for financial loss requires an assessment as to the existence of the damage as a prerequisite for any other steps: without the existence of damage, no mechanism for non-contractual liability should be triggered. At that stage, issues relating to the determination of the extent of the damage and its quantification come to the fore. 85. Clearly, in public procurement cases, those steps are very difficult, since, even assuming that rules of European Union law have been infringed, it is actually necessary to make a probability assessment in order to reach the conclusion that the excluded tenderer (in this case, the Combinatie) would finally have been awarded the contract if the tendering procedure had been conducted lawfully. 86. Nevertheless, the complexity I describe is not exclusive to this case in particular, but is inherent in a large number of cases concerning liability in tort, (43) which requires a court dealing with the substance of a case to apply abstract formulae based on the evidence available to it to enable it to assert, with a level of probability close to certainty, that the excluded tenderer would have been awarded the contract had the rules on contracting been complied with. 87. Another problem to be considered is that of what to incorporate in the damages which, for the purposes of compensation, may vary according to whether account is taken of only the objective costs which the tenderer incurred as a result of taking part in the public tender (actual loss) or other items, more difficult to establish, such as profits which were not earned (loss of profit) as a result of the unlawful exclusion. 88. However, that said, a clear distinction must be drawn between three areas connected with Directive 89/665: – First: that of Directive 89/665 itself, which is intended to strengthen existing arrangements, at both the national and Union level, for ensuring the effective application of the directives on procurement, (44) to which end it imposes on the Member States the obligation to ensure that unlawful decisions of contracting authorities may be reviewed effectively and as rapidly as possible and expressly includes in Article 2(1)(c) the award of damages to persons harmed by an infringement. – Second: that of the more specific rules which govern the various proceedings in the Member States. Given that the provisions of Directive 89/665 merely form part of the approximation of national procedural instruments for ensuring compliance with European Union rules on public procurement, it is obvious that it is for the Member States to determine the formalities and inherent characteristics of the proceedings intended to render the requirements of Article 2(1)(c) of Directive 89/665 effective, procedural specifications which fall outside its scope. – Third: that of the aspects of substantive law which allow clarification of that liability, which are also obviously outside the scope of Directive 89/665. b) The application of Article 2(7) of Directive 92/13 89. This perfectly defined framework, upon which European Union law has a bearing not in a direct way but by means of the principles of effectiveness and equivalence, may be understood as having been amended by Directive 92/13, if Article 2(7) thereof is regarded as incorporating certain guidelines for determining injury and its extent. 90. As we shall see, that is not quite true. 91. That provision raises the question whether it is possible to relate it to the requirements for the determination and extent of the damage for which Directive 89/665 guarantees compensation: in short, what is the significance to Directive 89/665 of that additional article in Directive 92/13? 92. To date, the Court has not ruled on that question. 93. Article 2(7) contains three elements which may be examined individually: first, a certain type of damage, that of the costs incurred in preparing a bid; second, the element of proof, limited to showing that there was, on the one hand, an infringement of European Union law and, on the other hand, a real chance of winning the contract, and; third, causation, meaning that, as a consequence of that infringement, that real chance of winning the contract was adversely affected. 94. Although public contracts in special sectors (water, energy, transport and postal services, governed by Directive 2004/17 (45)) differ, as regards their case-by-case approach and their nature, from contracts which may be concluded generally (governed by Directive 2004/18), it is difficult to identify reasons which justified regulation of compensation for damages, such as that being undertaken in this case, only in respect of the first and not for the second. 95. It must be pointed out that those two directives were amended by Directive 2007/66/EC (46) but that the Union legislature did not – taking advantage of that amendment – introduce in Directive 89/665 a provision similar to that in Article 2(7) of Directive 92/13, from which it may implicitly be inferred that the legislature did not wish to adopt such a provision with regard to the award of damages guaranteed by Directive 89/665, thereby intentionally leaving open the question of their determination. 96. As regards the extent of the damage to be compensated, it is obvious that Directive 89/665 leaves open that question, which, from the outset, presupposes that the Member States are free to incorporate both actual loss and loss of profit; however, it is equally true that Directive 92/13 does not restrict the autonomy of the States, since it governs only certain criteria on causation and proof for the purposes of facilitating compensation of the expenses incurred by a tenderer, but gives no guidance on the extent of the harm or the compensation or on the attribution of liability. The provision is limited to laying down a requirement for a legal line of argument – in the event that the European Union legislation is infringed – and more or less comprehensive proof concerning the probability of winning the contract. (47) 97. Accordingly, I am of the view that the relevance of Article 2(7) of Directive 92/13 must be qualified in this case. However, I consider that, neither legal certainty nor respect for the institutional balance would be adversely affected by the application to Directive 89/665, for interpretative purposes, of the elements of Article 2(7) of Directive 92/13 concerning causality and proof as regards the objective damage comprising the cost of participating in the tendering procedure, without thereby diminishing the freedom which, through procedural autonomy, European Union law confers on the Member States as to whether or not to require proof of causality (48) as regards any type of harm or its extent, or to consider harm other than that of costs alone, such as loss of profit. c) Determination of the damage 98. Accordingly, the keys to Question 4(c), as regards the determination of damage, should be sought in the principle of the procedural autonomy of the Member States, which are responsible for determining the criteria for awarding the compensation provided for in Article 2(1)(c) of Directive 89/665. 99. Directive 89/665 does not provide attribution criteria for the determination of injury; however, the Union must not remain absolutely detached, in so far as it must always ensure respect for the limits which I have described throughout this Opinion, represented by the needs of the principles of equivalence and effectiveness, as adequate safeguards of the right to effective protection by national courts of rights conferred by European Union law. 100. Thus, by way of an example, the parameter of effectiveness formed the basis of a ruling by the Court censuring the Portuguese Republic, (49) on account of the fact that, in its domestic legislation, it made the award of compensation for an infringement of European Union law in the field of public procurement or national rules implementing that law subject to a requirement to show the existence of fault or fraud, a requirement which, according to the Court, did not represent an adequate system of judicial protection, because it created a risk that tenderers who had suffered injury might be deprived of the right to claim compensation or that there might be a delay in granting it. (50) 101. In another field, in T-Mobile Netherlands and Others, (51) the Court addressed the question of whether, in the context of Article 81(1) EC and in relation to ‘examining whether there is a causal connection’ between the concerted practice and the market conduct of the undertakings, the national court is required to apply the presumption that there is a causal connection in certain circumstances, (52) or whether, as regards the burden of proof, the national court was free to apply the rules of its national law: the Court supported the view that Article 81(1) EC contains a presumption of a causal connection which ‘consequently forms an integral part of applicable Community law’. 102. The ruling in T-Mobile Netherlands and Others, which establishes at the level of European Union (competition) law the fact that a causal connection may be presumed to exist, contrasts with the judgment in ERG and Others, (53) which, for the purposes of the obligation to award compensation resulting from Directive 2004/35/EC, (54) after laying down proof of causation as a requirement for such an award, (55) none the less allows the Member States to introduce a presumption of a causal connection which must be based, it is true, on elements of plausible evidence set out in the actual judgment. 103. As has been seen, outside the field of public procurement, T‑Mobile Netherlands and Others confirms the relevance of European Union law for the purposes of establishing the causal connection, despite the fact that, in accordance with the requirements of procedural autonomy it should be a matter for the Member States. There is no shortage of reasons for such a position, since Article 81 EC, that is to say a provision of primary law, is directly involved in the field of competition. (56) However, the nature of Article 81 EC differs profoundly from the provisions in a directive, hence, at the level of secondary law, the Court has shown that it is reluctant (in ERG and Others, for example) so directly to impinge upon such an inherently procedural issue. 104. However, on the basis of Directive 89/665, by means of the rule on the limits of procedural autonomy, the Court has, in the Commission v Portugal cases, inferred that a national rule on the attribution of liability, one which requires proof of fault or fraud, is unlawful, and therefore, from that perspective, I can see no obstacle to extending that idea to other national rules, such as, generally, those concerning evidence or determination of damage. 105. From the foregoing, and for the purpose of answering the sections of Questions 4 and 5 relating to the criteria for determining damage, it is possible to extract a principle, a specific reflection of the requirement of the effectiveness of European Union law: the principle that the burden of proof in respect of injury, for the purposes of Article 2(1)(c) of Directive 89/665, cannot be so strict that it makes substantiating injury so difficult that the effectiveness of the provision is undermined. d) The extent of the injury 106. Directive 89/665 also provides no guidelines on the elements which may be included in the concept of damage, so that all issues relating to the extent of the damage must be understood within the limits of national law. 107. Nevertheless, in certain circumstances, the Court has also laid down specific obligations, in particular in the field of competition, relating to the award of damages, so as to protect interests harmed by an infringement of European Union law. 108. For example, in Courage and Crehan, (57) the Court stated that the full effectiveness of Article 85 of the Treaty (now Article 101 TFEU) requires the award of damages for loss caused by a contract or by conduct liable to restrict or distort competition, and, in Manfredi and Others, held that, in view of the absence of relevant provisions of European Union law, ‘it is for the domestic legal system of each Member State to set the criteria for determining the extent of the damages for harm caused … provided that the principles of equivalence and effectiveness are observed’ (paragraph 98). 109. In Manfredi and Others, the Court considered that it is the ‘right of any individual to seek compensation for loss caused by a contract or by conduct liable to restrict or distort competition’, and made it clear that ‘injured persons must be able to seek compensation not only for actual loss (damnum emergens) but also for loss of profit (lucrum cessans) plus interest’ (paragraph 95). 110. Since it must, in practice, be possible to make reparation of damage in the case of a breach of European Union law, the total exclusion of loss of profit as a head of damage cannot be accepted. (58) 111. Even more obvious, in my view, is the need to include, in accordance with the applicable national rules, and for the purpose of effective compensation, the corresponding interest, since, as may be inferred from Marshall, (59) ‘it constitutes an essential component of compensation.’ 112. With a view to answering Questions 4 and 5, I suggest that the Court declare that, for the purposes of Article 2(1)(c) of Directive 89/665, the criteria governing the determination and the extent of the damage to be made good, resulting from the infringement of European Union law on public procurement, must be determined under national law, although the principle of the effectiveness of European Union law requires that proof of injury should not be so strict that it makes substantiating injury so difficult that the effectiveness of that provision is undermined, that the corresponding interest must be included and, finally, that the possibility of taking into consideration loss of profit as a head of damage cannot be excluded. VII – Conclusion 113. In view of the foregoing considerations, I suggest that the Court should: (1) declare Question 1 inadmissible, and (2) provide the following answer to the remaining questions raised by the Rechtbank: (a) For the purposes of Question 2, Article 1(1) and (3) and Article 2(1) and (6) of Directive 89/665/EEC, to the extent that it has not been established that the effectiveness of that provision has been adversely affected, do not preclude national legislation providing for only one procedure for obtaining an interim measure, characterised by the fact that it is geared to their rapid adoption, that lawyers have no right to exchange views, that evidence is, as a rule, presented solely in written form and that statutory rules on evidence are not applicable (Question 2(a)), irrespective of whether the judicial decision adopting that interim measure does not lead to the final determination of the legal situation and does not form part of the process in which that legal situation is finally determined (Question 2(b)) or whether that decision is binding only on the parties to the proceedings (Question 2(c)). (b) For the purposes of Question 3, Directive 89/665 does not prevent the judge dealing with interim relief proceedings from taking a differing view to that of the court dealing with the substantive proceedings on the main issue, provided that the national procedural system secures the results required by Directive 89/665 and, in particular, the coexistence of the three guarantees provided for in Article 2(1), as they have been interpreted in Community case-law. (c) For the purposes of Questions 4 and 5: – the Court should declare that it has no jurisdiction to give a ruling on who must be deemed liable in the national dispute. – for the purposes of Article 2(1)(c) of Directive 89/665, the criteria governing the determination and the extent of the damage to be made good, resulting from the infringement of European Union law on public procurement, must be determined under national law, although the principle of the effectiveness of European Union law requires that proof of injury should not be so strict that it makes substantiating it so difficult that the effectiveness of that provision is undermined, the corresponding interest must be included and, finally, the possibility of taking into consideration loss of profit cannot be excluded. 1 – Original language: Spanish. 2 – OJ 1989 L 395, p. 33. 3 – OJ 1992 L 209, p. 1. 4 – For the purposes of the national administrative case, the contract was identified as Project 1382. 5 – According to the Provincie, the principle irregularities consisted in significant alterations – made during the procedure – to criteria relating to the tenderers’ suitability, experience and turnover. Similarly, the Combinatie was notified that, following a thorough re-examination of MFE’s tender, the conclusion had been reached that the contract could not be awarded to it and that the possibility of a fresh call for tenders was therefore under consideration. 6 – Paragraph 4.13 of the Order of 27 November 2007. 7 – The hearing had been set for 13 February. 8 – Directive 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 (‘the Directive’, OJ 2004 L 134, p. 114). 9 – This amount, applicable at the time when the invitation to tender was published, was set by Commission Regulation (EC) No 2083/2005 of 19 December 2005 amending Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the award of contracts (OJ 2005 L 333 p. 28). 10 – Provision worded in accordance with Article 41 of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). Pursuant to Article 33 of Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1), to Article 36 of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54) and to the second paragraph of Article 82 of 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 (OJ 2004 L 134, p. 114), and in accordance with the correlation tables annexed to those directives, references to Directives 71/305/EEC, 77/62/EEC and 92/50/EEC contained in Article 1(1) of Directive 89/665 are to be construed as references to Directive 2004/18. 11 – Council Directive of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1992 L 76, p. 14). 12 – The explanatory memorandum to the Raamwet EEG-voorschriften aanbestedingen, een kaderwet voor de implementatie van communautaire aanbestedingsregels (Framework law for the application of Community rules on public procurement (‘the Raamwet’) confirms that view by stating that ‘the implementation of [Directive 89/665/EEC] does not require changes to the regulations. … The review procedures which must be available to interested parties under the directive already exist within the Netherlands legal system’. 13 – This may be inferred from the case-law of the Raad van State (Council of State). 14 – Inter alia, the decision to award the contract to a given tenderer. 15 – As follows from the Raamwet and Article 8(3) of the Algemene Wet Bestuursrecht (‘General Law on Administrative Law’), it is not possible to appeal to an (administrative) court against prior decisions taken by a public authority in preparation for a legal act governed by private law. 16 – Not even in the case of contracting authorities’ preliminary decisions, such as the award decision. 17 – According to the observations of the Netherlands Government, the administrative courts may, however, have jurisdiction where, exceptionally, specific legislation confers jurisdiction on them, as occurs in the case of concessions on the basis of the Wet Personenvervoer of 2000 (Law of 2000 on the transport of persons). 18 – Case C‑429/05 Rampion and Godard [2007] ECR I‑8017, paragraphs 23 and 24; Case C‑387/07 MI.VER and Antonelli [2008] ECR I‑9597, paragraph 15; Case C‑206/08 Eurawasser [2009] I‑8377, paragraphs 33 and 34; and Case C‑314/08 Fikipiak [2009] ECR I‑0000, paragraphs 40 to 42. 19 – From the outset, Question 1(b) and (c) are somewhat contradictory, since although section (b) states that ‘the administrative courts [are] confined to forming an opinion and ruling on the tendering decision’ section (c) states that the General Law on Administrative Law excludes ‘such applications in the case of decisions concerning the conclusion of a contract by the contracting authority with one of the tenderers’. 20 – In the Netherlands the administrative court has no jurisdiction over aspects concerning public procurement. Powers of review extend only to certain public concessions, which generally fall within the scope of administrative law and are very common in the sphere of public property and services. That exception is referred to in the explanatory memorandum to the General Law on Administrative Law, as pointed out by the Netherlands Government, which, in order to prevent undesired conflicts opposed the parallel jurisdiction of the two systems of courts. 21 – Case C‑244/80 Foglia [1981] ECR 3045, paragraph 18. 22 – Case 33/76 Rewe [1976] ECR 1989, paragraph 5; Case C‑312/93 Peterbroeck, [1995] ECR I‑4599, paragraph 12; Case C‑432/05 Unibet [2007] ECR I‑2271, paragraph 39; Joined Cases C‑222/05 to C‑225/05 Van der Weerd and Others [2007] ECR I‑4233, paragraph 28; and Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 44. 23 – Peterbroeck, paragraph 14, and Case C‑2/08 Fallimento Olimpiclub [2009] ECR I‑7501, paragraph 27. 24 – Case C‑231/96 Edis [1998] ECR I‑4951, paragraph 36; Case C‑326/96 Levez [1998] ECR I‑7835, paragraph 41; and Joined Cases C‑392/04 and C‑422/04 i-21 Germany and Arcor [2006] ECR I‑8559, paragraph 62. 25 – Aspects in respect of which the Court must not rule in abstracto. 26 – Article 2(1)(a). Emphasis added. Moreover, Article 2(4) of Directive 89/665 provides that a Member State, at the time it authorises those measures, may strike a balance between ‘the probable consequences of the measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures where their negative consequences could exceed their benefits.’ Furthermore, although the same paragraph states that ‘[a] decision not to grant interim measures shall not prejudice any other claim of the person seeking these measures’, it does not establish the procedural means whereby they may be upheld. 27 – For example, in Case C‑236/95 Commission v Greece [1996] ECR I‑4459, paragraph 11, and Case C‑214/00 Commission v Spain [2003] ECR I‑4667, paragraph 98, from which it is clear that it must be possible to take interim measures, independently of any prior action. 28 – Emphasis added. 29 – The reformulations of that question proposed by the Commission and the Netherlands, namely whether Directive 89/665 is infringed where the judge dealing with proceedings for interim relief applies European Union law in a way which, subsequently, the court dealing with the substance regards as incorrect, would be easy to answer, since, clearly, on the basis of distinguishing between the procedural rules contained in Directive 89/665 – concerning review guarantees – and the substantive rules on public procurement, an interim measure which is based on a misinterpretation of the applicable substantive law does not in itself entail infringement of Directive 89/665. 30 – Case C‑30/93 AC-ATEL Electronics Vertriebs [1994] ECR I‑2305, paragraphs 16 and 17, and Case C‑107/98 Teckal [1999] ECR I‑8121, paragraphs 29 and 30. 31 – In order to establish that ‘misinterpretation’ the Court would have to unravel elements which it is solely for the national court to assess. 32 – Case C‑320/88 Shipping and Forwarding Enterprise Safe [1990] ECR I‑285, paragraph 11. 33 – There are procedural systems, such as the Spanish system, in which those changes are made automatically, the issue of a final judgment sufficing in that regard. 34 – In particular in its clarifications (paragraph 18 et seq.) to the questions put by the Court. After explaining that the Netherlands legal system draws a distinction between, first, the decision – of administrative law – to award the contract and, secondly, the act of private law whereby that award is effected – the conclusion of the contract –, it emphatically states that neither the first nor the second may be the subject-matter of an action to set it aside. 35 – Case C‑81/98 Alcatel Austria and Others [1999] ECR I‑7671, paragraphs 35, 37, 38 and 43. 36 – The Netherlands Government has emphasised throughout its observations that – as already stated – the administrative court has no jurisdiction to set aside the contract award decision, since that decision is merely an element prior to the private act. However, the civil court is also unable to set aside the award decision, since it was taken by a public authority. Nevertheless, the fact is that even the civil courts are unable to hear any action to set aside the conclusion of the contract (an act governed by private law): as is clear from paragraph 20 of its clarifications, the case-law of the Hoge Raad precludes such review and, except in special circumstances, a contract cannot be challenged on the ground that it is incompatible with the legislation on public procurement, on the basis that no legal standing is conferred on any person who might challenge legal defects in the contract or the prior procedure, that is an excluded tenderer, since he is not a party to the contract from the point of view of private law. 37 – Moreover, none of the parties has raised this issue. 38 – Although it would have been difficult for it to ‘revoke, uphold or amend’ the interim measures, because, as I have stated above, the objectives and claims in the two proceedings were different and could also affect different parties. 39 – According to the Rechtbank, the above problem would not arise ‘if the decision could be contested in only one specific tendering procedure before one court and if, for damages to be awarded, it were to be determined that the contested decision must first be set aside by the competent authority’. 40 – In order to do so, it must take into account all the factors which characterise the situation which has been brought before it, ‘in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Community institution and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under … Article [267 TFEU]’ (Case C‑224/01 Köbler [2003] ECR I‑10239, paragraph 55), a sufficiently serious infringement of European Union law occurring ‘where the decision concerned was made in manifest breach of the case-law of the Court in the matter’ (Joined Cases C‑46/93 and C‑48/93 Brasserie du pêcheur and Factortame [1996] ECR I‑1029, paragraph 57, and Köbler, paragraph 56.) 41 – Provided that the requirements set out in the settled case-law of the Court have been fulfilled: that the rule of European Union law infringed is intended to confer rights upon them, that the breach of that rule is sufficiently serious and that there is a direct causal link between that breach and the damage sustained. 42 – Which cannot, for these purposes, make less favourable provision for infringements of European Union law than for infringements of domestic rules (principle of equivalence) nor be so framed as to make it, in practice, impossible or excessively difficult to obtain reparation (principle of equivalence) (see Köbler, paragraph 58, and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 123). 43 – It is sufficient to refer, for example, to cases of liability for damage caused in the course of medical treatment deemed to fall short of the state of the art. 44 – Case C‑103/97 Köllensperger and Atzwanger [1999] ECR I‑551, paragraph 3, and the judgment of 14 October 2004 in Case C‑275/03 Commission v Portugal, not published in the ECR, paragraph 28. 45 – Directive of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1). 46 – Directive of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31). 47 – However, as regards the criteria for determining the damage, the underlying simplicity of Article 2(7) makes it similar to the Court’s finding in the judgment in Commission v Portugal in which, although the Court did not actually give a ruling as to the existence of strict liability, the manner in which it sets out the criteria for determining damage seems from a practical point of view, effectively to boil down to a finding of infringement of European Union. 48 – In that regard, on the basis of the principle of equivalence – albeit in the field of competition – in Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 99, the Court stated that ‘if it is possible to award specific damages, such as exemplary or punitive damages, in domestic actions similar to actions founded on the Community … rules, it must also be possible to award such damages in actions founded on Community rules’, although that does not prevent ‘national courts from taking steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them’. 49 – Commission v Portugal. 50 – In Case C‑70/06 Commission v Portugal [2008] ECR I‑1, the second of the series, in which the Portuguese Republic was censured for failing to take the measures necessary to comply with the judgment of 14 October 2004 in Case C‑275/03, the Court further warned that the furnishing of proof of fault or fraud, although it does not render it impossible for individuals to bring judicial actions, ‘would appear, none the less … to render those actions more difficult and costly, so impairing the full effectiveness of the Community’s public procurement policy’, paragraph 42. 51 – Case C‑8/08 [2009] ECR I‑4529. 52 – Specifically, where the undertakings remain active on the market and take into account the information exchanged with their competitors. 53 – Case C‑378/08 [2010] ECR I‑0000. 54 – Directive of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56). 55 – Between the actions of the economic operators and the pollution caused. 56 – Moreover, since it is concerned with public policy, that provision produces direct effects for individuals and must be automatically applied by national courts, T‑Mobile Netherlands and Others, paragraphs 44 to 53. 57 – Case C‑453/99 [2001] ECR I‑6297, paragraph 26. 58 – Brasserie du pêcheur and Factortame, paragraph 87; Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I‑1727, paragraph 91; and Manfredi and Others, paragraph 96. 59 – Case C‑271/91 Marshall [1993] ECR I‑4367, paragraph 31, from which it may be inferred that the need for effective reparation for loss or damage also constitutes a requirement in fields other than competition, since Marshall was concerned with damage suffered as a result of discriminatory dismissal.