OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 14 September 2010 ( )

Case C‑568/08

Combinatie Spijker Infrabouw/De Jonge Konstruktie

van Spijker Infrabouw BV

de Jonge Konstruktie BV

v

Provincie Drenthe

(Reference for a preliminary ruling from the Rechtbank Assen (Netherlands))

(Public procurement – Review procedures in matters relating to the award of public works and supply contracts – Provisional measures adopted in interim proceedings – Damages resulting from the infringement of European Union law – Criteria for attributing liability and quantifying damage)

1. The reference for a preliminary ruling from the Rechtbank Assen (‘the Rechtbank’) concerns the interpretation 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 ( ) (‘Directive 89/665’).

2. By its five questions, most of which are in turn subdivided into several more, the Rechtbank asks the Court to give a ruling on two distinctly separate matters.

3. First, the matter of whether the review procedures introduced by Directive 89/665, and in particular Articles 1(1) and (3) and 2(1) and (6) thereof, preclude a national procedural rule on interim measures such as that of the Netherlands, which, in the field of public procurement, as a general rule, confers jurisdiction on the civil courts while laying down limits on the presentation of submissions and evidence and, finally, formulates those measures as independent of the substantive proceedings on the main issue leading to the final determination of the legal relationship, thereby conferring on those interim measures a certain degree of permanence.

4. Secondly, the Rechtbank asks whether, for the purposes of Article 2(1)(c) of Directive 89/665, that is, to ‘award damages to persons harmed by an infringement’, European Union law sets criteria for attributing that liability and for determining and estimating the damage.

5. In those terms, the present case provides the opportunity to clarify certain points of Directive 89/665 which are of great significance for the purpose of upholding the legality which European Union law requires in the context of public procurement.

I – The facts

6. With a view to renovating, in the commune of Emmen, two bascule bridges on the waterway link of the Erica-Ter Apel network of canals, the Provincie Drenthe (‘the Provincie’) initiated a public call for tenders for the award of a works contract, published in the Official Journal of the European Union on 18 July 2007. ( )

7. The European Union granted a subsidy to the project on condition that the works were completed within a given period, which expired on 1 July 2008.

8. Four tenderers submitted bids, the lowest tender being that of the undertaking Machinefabriek Emmen BV (‘MFE’) and the second lowest that of Combinatie Spijker Infrabouw (‘the Combinatie’).

9. On 2 October 2007 the Provincie informed the Combinatie that it intended to award the contract to MFE because the latter had submitted the lowest tender.

10. On 18 October 2007, the Combinatie reacted to the tendering decision by requesting that the judge dealing with interim relief proceedings at the Rechtbank Assen (‘the judge dealing with interim relief proceedings’) order that the tender submitted by MFE was invalid and that the Combinatie was therefore the undertaking which had tendered the lowest price and also that the Combinatie should be awarded the contract in the event that the Provincie should proceed to make the award.

11. However, pending those interim proceedings, on 1 November 2007, the Provincie informed all the tenderers that it was withdrawing the call for tenders, thereby revoking its tendering decision notified on 2 October 2007, on the basis of what it regarded as a number of breaches of essential procedural requirements. ( )

12. This did not induce the Combinatie to withdraw its application for interim measures. On 9 November 2007, MFE, the undertaking initially awarded the contract, requested that the judge dealing with interim relief proceedings award the contract to it. At the hearing, the provincie argued that it did not wish to award the contract to any of the tenderers.

13. On 28 November 2007, the judge dealing with interim relief proceedings issued a – provisionally enforceable – order, whose decisive passage, for our purposes, reads as follows: taking into account that ‘the Provincie stated by letter of 2 October 2007 that it intended to award the contract to Machinefabriek Emmen, although proceedings for an interim order were not brought within 15 days, the Provincie cannot, at this stage of the tendering procedure and in accordance with the principles of equal treatment, the protection of legitimate expectations and the principle of pre-contractual good faith, award the contract by means of a second tendering procedure for the same contract to a person other than the person entitled to be awarded the contract on the basis of the first tendering procedure’, ( ) which, according to the operative part of the order, ‘prevents the award of the contract to a third party other than Machinefabriek’.

14. Five days later, on 3 December 2007, the Provincie awarded the contract to MFE.

15. On 11 December 2007 the Combinatie brought an appeal before the Gerechtshof Leeuwarden, applying for suspension of enforcement of the decision of the judge dealing with interim relief proceedings.

16. By interlocutory decision of 30 January 2008, the Gerechtshof Leeuwarden dismissed the application for suspension of enforcement, considering that MFE had a reasonable interest in enforcement of the decision of the judge dealing with interim relief proceedings. Although the appeal could continue in respect of the remaining claims for the order of the judge dealing with interim relief proceedings to be set aside or upheld, ( ) the Combinatie withdrew its appeal.

17. The Combinatie subsequently brought an action before the Rechtbank seeking compensation from the Provincie for the damage caused as a consequence of the outcome of the invitation to tender for public works. The application was lodged on 29 February 2008. On 22 December 2008, the Rechtbank submitted this reference for a preliminary ruling.

II – The questions referred for a preliminary ruling

18. In its order for reference, the Rechtbank takes the view, and this point will prove particularly relevant, that the decision of the Provincie to revoke its tendering decision of 2 October 2007 and to repeat the tendering procedure was the only option which is consistent with the proper application of the law on public procurement.

19. On the basis of that premiss, the Rechtbank stayed the proceedings and referred the following questions to the Court for a preliminary ruling under Article 267 TFEU:

‘1(a) Must Article 1(1) and (3) and Article 2(1) and (6) of Directive 89/665/EEC be interpreted as meaning that they have not been complied with if the legal protection to be afforded by national courts in disputes relating to tendering procedures governed by European law is impeded by the fact that conflicting decisions may arise under a system in which both administrative courts and civil courts may have jurisdiction with respect to the same decision and its consequences?

1(b) Is it permissible in this context for the administrative courts to be confined to forming an opinion and ruling on the tendering decision, and if so, why and/or under what conditions?

1(c) Is it permissible in this context for the Algemene wet bestuursrecht (Netherlands General Law on Administrative Law), which, as a rule, governs applications for access to the administrative courts, to exclude such applications in the case of decisions concerning the conclusion of a contract by the contracting authority with one of the tenderers, and if so, why and/or under what conditions?

1(d) Is the answer to Question 2 of relevance in this context?

2(a) Must Article 1(1) and (3) and Article 2(1) and (6) of Directive 89/665 be interpreted as meaning that they have not been complied with if the only procedure for obtaining a rapid decision is characterised by the fact that it is in principle geared to a rapid mandatory measure, that lawyers have no right to exchange views, that [no] evidence is, as a rule, presented in other than written form and that statutory rules on evidence are not applicable?

2(b) If not, does this also apply if the decision 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(c) Does it make a difference in this context if the decision is binding only on the parties to the proceedings, even though other parties may have an interest?

3. Is it compatible with Directive 89/665 for a court, in interim relief proceedings, to order the contracting public authority to take a tendering decision which is subsequently deemed, in proceedings on the substance, to be contrary to tendering rules under European law?

4(a) If the answer to the previous question is in the negative, must the contracting public authority be deemed liable in that regard, and if so, in what sense?

4(b) Does the same apply if the answer to that question is in the affirmative?

4(c) If that authority is required to pay damages, does Community law set criteria for determining and estimating those damages, and if so, what are they?

4(d) If the contracting public authority cannot be deemed liable, is it possible, under Community law, for some other person to be shown to be liable, and on what basis?

5. If it in fact appears to be impossible, or extremely difficult, under national law and/or with the aid of the answers to the above questions to attribute liability, what must the national court do?’

III – Procedure before the Court

20. The decision which resulted in this reference for a preliminary ruling was registered at the Registry of the Court of Justice on 22 December 2008.

21. Observations were submitted, within the period prescribed by Article 23 of the EC Statute of the Court of Justice, by the Combinatie, the Provincie, the Government of the Netherlands and the Commission.

22. After its general meeting of 1 December 2009, the Court decided, pursuant to Article 104(5) of its Rules of Procedure, to request a series of clarifications from the Rechtbank concerning the economic value of the contract tendered by the Provincie. By its response lodged at the Registry of the Court on 2 February 2010, the Rechtbank explained that that contract formed part of more general works, those relating to the Erica-Ter Apel navigable link, whose overall value, excluding VAT, is estimated at EUR 6 100 000.

23. When the case was again discussed at the general meeting of 23 March 2010, the decision was made to send a series of written questions to the parties involved in the reference for a preliminary ruling, concerning the enforcement of interim measures in Netherlands law, the possibilities it provides for annulling the contract and the options available to the Provincie after the interim order.

24. The final responses translated into French were received on 7 June 2010, since when this Opinion has been in preparation, as none of the parties requested that a hearing be held.

IV – Relevant law

A – European Union law

1. Directive 2004/18/EC ( )

25. Article 7(c) sets the financial threshold for public works contracts:

‘This Directive shall apply to public contracts which are not excluded … and which have a value exclusive of value added tax (VAT) estimated to be equal to or greater than the following thresholds:

…

EUR 5 278 000 for public works contracts.’ ( )

2. Directive 89/665

26. Pursuant to Article 1(1) of Directive 89/665 ‘[t]he Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EEC, and 92/50/EEC, decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following articles and, in particular, Article 2(7) on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law’. ( )

27. Article 1(3) states:

‘The 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 public supply or public works contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.’

28. Article 2(1), (5) and (6) provide:

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

(a) take, at the earliest opportunity and by way of interlocutory procedures, interim measures with the aim of correcting the alleged infringement or preventing further damage to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a public contract or the implementation of any decision taken by the contracting authority;

(b) either set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or in any other document relating to the contract award procedure;

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

…

5. The Member States may provide that where damages are claimed on the grounds that a decision was taken unlawfully, the contested decision must first be set aside by a body having the necessary powers.

6. The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law.

Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.

…’

3. Article 2(7) of Directive 92/13/EEC ( )

29. Under this provision ‘[w]here a claim is made for damages representing the costs of preparing a bid or of participating in an award procedure, the person making the claim shall be required only to prove an infringement of Community law in the field of procurement or national rules implementing that law and that he would have had a real chance of winning the contract and that, as a consequence of that infringement, that chance was adversely affected.’

B – Netherlands law

30. The Netherlands did not adopt specific measures to transpose Directive 89/665, since it considered that its legislation complied with the requirements laid down by that directive. ( )

31. In the Netherlands, a particular organisational feature in this respect is that the conclusion of a public contract is governed by private law, ( ) since the preceding decisions adopted by administrative authorities in the course of a tendering procedure ( ) are regarded merely as decisions preliminary to a private legal act.

32. As a result, in the Netherlands the civil courts ( ) have sole jurisdiction to settle disputes concerning the award of public contracts, both as regards the adoption of interim measures and the substantive proceedings, which are limited to obtaining compensation for the damage caused.

33. The administrative courts have no jurisdiction, ( ) unless a special law provides otherwise. ( )

34. Articles 254 to 260 of the Nederlands Wetboek van Burgerlijke Rechtsvordering (the Netherlands Code of Civil Procedure, ‘the Code of Civil Procedure’) govern proceedings for interim measures which, since they are restricted to cases of urgency, are intended to be rapid and are entirely dominated by oral procedure and subject to specific provisions concerning evidence unlike those governing ordinary proceedings.

V – Issues of admissibility

A – A preliminary matter: the amount of the project

35. The Commission and the Netherlands Government submit in their observations that the order for reference does not disclose the amount of the planned works contract, which requires a preliminary clarification.

36. It is a prerequisite for the application of Directive 89/665 in this case that the tender of the Provincie was above the minimum financial threshold laid down by Directive 2004/18, which, as stated above, at the time was EUR 5 278 000 in the case of public works contracts.

37. Moreover, pursuant to Article 9 of Directive 2004/18, the calculation of the estimated value of the public contract must be based on the total amount payable, net of VAT, as estimated by the contracting authority (paragraph 1), and no works project may be subdivided ‘to prevent its coming within the scope of this Directive’ (paragraph 3). In cases where the proposed work might result in contracts being awarded at the same time in the form of separate lots, ‘account shall be taken of the total estimated value of all such lots’ (paragraph 5(a)).

38. In the light of the Rechtbank’s clarifications in that regard, the works comprising the subject-matter of the main dispute form part of a huge project for the construction of a navigable international tourist link between Germany and the Netherlands. Those works were distributed over various stages, but pursue the same objective from a functional point of view, so that, pursuant to the above provisions, the project as a whole must not be divided for the purpose of valuing it. For all the foregoing reasons, as the national court states, and in view of the fact that the competent authority responsible for implementation determined the eligible costs at EUR 6 100 000, the amount of all the projects must be regarded as far exceeding that financial threshold.

39. Accordingly, the public works contract for the renovation of the two bascule bridges on the waterway link of the Erica-Ter Apel network of canals, on the basis of its amount, is governed by Directive 2004/18 and, consequently, is subject to the review guarantees established by Directive 89/665.

B – The hypothetical nature of the first question

40. The Rechtbank put to the Court a detailed set of questions, the first of which, as will be seen below and as is evident, is merely hypothetical in nature and, therefore, inadmissible.

41. It must be remembered from the outset that the national dispute in which this question arises consists in civil proceedings seeking compensation for damage caused by the unlawful award of a public contract which, as has been stated, is governed in the Netherlands by private law. However, the Rechtbank introduces in the first question a series of questions which are not (or are only distantly) related to the actual nature of the proceedings or to the main action underlying it, thereby making it possible to raise an objection of inadmissibility against those questions. ( )

42. The Rechtbank starts from the premiss (Question 1(a)) that certain provisions of Directive 89/665 may be infringed where legal protection is impeded (incorporating a value judgment in the actual wording of the question), since, in the Netherlands legal system, it is possible that ‘conflicting decisions may arise’ in civil and administrative courts. In the following three sections of Question 1, the Rechtbank essentially maintains that premiss, as evidenced by the expression ‘in this context’, which is used in each of them, and asks whether it is permissible, on the one hand, for the administrative courts to be confined to forming an opinion and ruling on the tendering decision (Question 1(b)) and, on the other hand, for the General Law on Administrative Law to exclude such applications in the case of decisions of the administration concerning the award (Question 1(c)), ( ) and seeks to ascertain, finally, (Question 1(d)), whether the answers to that first question depend on whether, in the light of the second question, the Court finds that there has been an infringement of European Union law on account of the way in which interim measures are provided for in the Netherlands legal system.

43. There is no doubt that all the sections of Question 1 are hypothetical in nature. In that regard, it is sufficient to point out that the court of the judge dealing with interim relief proceedings, the Gerechtshof Leeuwarden (First Civil Section, acting as an appeal court) and the Rechtbank (the referring court, before which the claim for damages is being brought), that is to say all the courts involved since the dispute arose following the Combinatie’s application, form part of the civil court system.

44. Irrespective of whether, as the parties state as regards the Netherlands legislation, ( ) simultaneous jurisdiction by the civil and administrative courts might arise on an exceptional basis, that has not occurred in this case, in any event, and it may be inferred from the order of the Rechtbank that the opposite is true. Indeed, the latter makes no reference, in the present case, to the involvement of an administrative court, since the actual wording of Question 1(a), referring to the fact that they ‘may have jurisdiction’, appears to be merely hypothetical; nor does it identify the ‘same decision’ over which both court systems may have jurisdiction, where, in addition, there is a distinction between the subject-matter of the actions before the judge dealing with interim relief proceedings (the decision to award the contract to MFE) and the Rechtbank, which rules only on the claim for compensation for damages, from which it should be concluded that no conflicting decisions concerning the same decision were – ever in this case – taken, since the subject-matters under dispute and the claims put forward differ substantially.

45. Given the manifest absence of involvement of the administrative courts in this case, on which the sub-questions in Question 1 hinge, and taking into consideration that Article 267 TFEU does not allow the Court to deliver a mere advisory opinion on general or hypothetical questions, ( ) I am of the opinion that it should be declared inadmissible.

VI – The substance

46. The analyses of the four remaining questions raised by the Rechtbank, quite apart from a certain obscurity as to their meaning, may be grouped together according to a threefold perspective, for the purposes of their examination in relation to Directive 89/665: (A) the organisation of interim judicial protection, (B) the absence of substantive justice other than that related to obtaining compensation and (C) the determination of liability and its translation into compensation for damages.

A – The organisation of interim judicial protection: answer to Question 2

47. In general, in Question 2 the Rechtbank asks whether a 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, ( ) subject always to the requirement to protect those rights in a manner consistent with the principles of effectiveness ( ) and equivalence. ( )

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, ( ) 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’. ( )

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. ( )

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, ( ) 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, ( ) 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. ( )

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, ( ) 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. ( )

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, ( ) 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. ( ) 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. ( )

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 ( ) is not particularly relevant in the circumstances of this case. ( )

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, ( ) 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. ( )

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 ( ) 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 ( ) – 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. ( )

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, ( ) 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, ( ) 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 ( )) 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 ( ) 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. ( )

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 ( ) 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, ( ) 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. ( )

101. In another field, in T-Mobile Netherlands and Others, ( ) 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, ( ) 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, ( ) which, for the purposes of the obligation to award compensation resulting from Directive 2004/35/EC, ( ) after laying down proof of causation as a requirement for such an award, ( ) 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. ( ) 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, ( ) 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. ( )

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, ( ) ‘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.