EN Official Journal of the European Union C 55/3

Judgment of the Court (Second Chamber) of 9 December 2010 (reference for a preliminary ruling from the Rechtbank Assen — Netherlands) — Combinatie Spijker Infrabouw-De Jonge Konstruktie, van Spijker Infrabouw BV, de Jonge Konstruktie BV v Provincie Drenthe

(Case C-568/08) (1)

(Public contracts - Procedures for reviewing the award of public works contracts - Directive 89/665/EEC - Duty of Member States to make provision for a review procedure - National legislation permitting a court hearing an application for interim measures to authorise a decision awarding a public contract which may subsequently be held contrary to European Union legal rules by the court hearing the substance of the case - Compatibility with the directive - Award of damages to the tenderers harmed - Conditions)

2011/C 55/05

Language of the case: Dutch

Referring court

Rechtbank Assen

Parties to the main proceedings

Applicants: Combinatie Spijker Infrabouw-De Jonge Konstruktie, Van Spijker Infrabouw BV, De Jonge Konstruktie BV

Defendant: Provincie Drenthe

Re:

Reference for a preliminary ruling — Rechtbank Assen — Interpretation of Article 1(1) and (3) and Article 2(1) and (6) 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 (OJ 1989 L 395, p. 33), as amended by Directive 2007/66/EC — National legislation providing for parallel jurisdiction of civil courts and administrative courts which may result in conflicting decisions — Jurisdiction of the administrative courts limited to an appraisal of the tendering decision — Jurisdiction excluded in the case where a decision has been taken to award the contract to one of the tenderers — Award of damages

Operative part of the judgment

1. Article 1(1) and (3) and Article 2(1) and (6) 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 Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, do not preclude a system in which, in order to obtain a rapid decision, the only procedure available is characterised by the fact that it is geared to a rapid mandatory measure, that lawyers have no right to exchange views, that no evidence is, as a rule, presented other than in written form, that statutory rules on evidence are not applicable, and that the judgment does not lead to the final determination of the legal situation and does not form part of a decision-making process leading to such a final decision.

2. Directive 89/665, as amended by Directive 92/50, must be interpreted as not precluding a court hearing an application for interim measures, for the purposes of adopting a provisional measure, from carrying out an interpretation 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 which is, subsequently, classified as erroneous by the court hearing the substance of the case.

3. As regards State liability for damage caused to individuals by infringements of European Union (EU) law for which the State may be held responsible, the individuals harmed have a right to redress where the rule of EU law which has been infringed is intended to confer rights on them, the breach of that rule is sufficiently serious, and there is a direct causal link between the breach and the loss or damage sustained by the individuals. In the absence of any provisions of EU law in that area, it is for the internal legal order of each Member State, once those conditions have been complied with, to determine the criteria on the basis of which the damage arising from an infringement of EU law on the award of public contracts must be determined and estimated, provided the principles of equivalence and effectiveness are complied with.

(1) OJ C 69, 21.3.2009.