Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others v Provincie Drenthe.
Date: 2010-12-09
42. According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, in particular, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 59, and Case C‑459/07 Elshani  [2009] ECR I‑2759, paragraph 40).
43. Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of European Union (EU) law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( Bosman , paragraph 61; Elshani , paragraph 41).
46. It is true that, when ruling in the context of a reference for a preliminary ruling, the Court of Justice may not rule on the interpretation of national laws or regulations (Case 32/76 Saieva  [1976] ECR 1523, paragraph 7; Joined Cases 91/83 and 127/83 Heineken Brouwerijen  [1984] ECR 3435, paragraph 10; and Joined Cases C‑92/92 and C‑326/92 Phil Collins and Others  [1993] ECR I‑5145, paragraph 13).
57. Thus, it may be concluded that Directive 89/665 leaves Member States a discretion in the choice of the procedural guarantees for which it provides, and the formalities relating thereto.
87. That provision gives concrete expression to the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law for which the State can be held responsible. According to case-law developed since the adoption of Directive 89/665, but which is now consistent, that principle is inherent in the legal order of the Union. The Court has held that individuals harmed have a right to reparation where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals (Joined Cases C-6/90 and C-9/90 Francovich and Others  [1991] ECR I-5357, paragraph 35; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame  [1996] ECR I-1029, paragraphs 31 and 51; and Case C‑445/06 Danske Slagterier  [2009] ECR I‑2119, paragraphs 19 and 20).
90. In the absence of EU provisions in that area, it is for the legal order of each Member State to determine the criteria on the basis of which damage arising from an infringement of EU law on the award of public contracts must be determined and estimated (see, by analogy, Case C‑315/01 GAT  [2003] ECR I‑6351, paragraph 46; and Case C 314/09 Strabag and Others  [2010] ECR I-0000, paragraph 33) provided the principles of equivalence and effectiveness are complied with (see, to that effect, Joined Cases C‑295/04 to C‑298/04 Manfredi and Others  [2006] ECR I‑6619, paragraph 98).
91. It is apparent from well-established case-law that the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (see, in particular, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral  [1976] ECR 1989, paragraph 5; Case C‑432/05 Unibet  [2007] ECR I‑2271, paragraph 43; Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 46; and Case C‑246/09 Bulicke  [2010] ECR I-0000, paragraph 25).