1 This request for a preliminary ruling concerns the interpretation of Article 2(1)(c) and Article 2(6) and (7) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33), as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665 and 92/113/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31) (‘Directive 89/665’).
2 The request has been made in proceedings between INGSTEEL spol. s r. o. and the Slovak Republic, acting through the Úrad pre verejné obstarávanie (Public Procurement Regulatory Authority, Slovakia), concerning an action for damages brought by that company following the unlawful exclusion of the association of which it was a member (‘the tendering association’) from procedure for the award of a public contract initiated by Slovenský futbalový zväz (Slovak Football Association; ‘the contracting authority’). Legal context European Union law Directive 89/665
3 The sixth recital of Directive 89/665 is worded as follows: ‘Whereas it is necessary to ensure that adequate procedures exist in all the Member States to permit the setting aside of decisions taken unlawfully and compensation of persons harmed by an infringement.’
4 Article 1 of Directive 89/665, entitled ‘Scope and availability of review procedures’, provides: ‘1. This Directive applies to contracts referred to in 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)], unless such contracts are excluded in accordance with Articles 10 to 18 of that Directive. … Member States shall take the measures necessary to ensure that, as regards contracts falling within the scope of Directive [2004/18], 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 Articles 2 to 2f of this Directive, on the grounds that such decisions have infringed Community law in the field of public procurement or national rules transposing that law. 2. Member States shall ensure that there is no discrimination between undertakings claiming harm in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules. 3. 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 contract and who has been or risks being harmed by an alleged infringement. …’
5 Article 2 of that directive, entitled ‘Requirements for review procedures’ states: ‘1. Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for 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. … 6. 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. 7. Except where provided for in Articles 2d to 2f, the effects of the exercise of the powers referred to in paragraph 1 of this Article 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 in accordance with Article 1(5), paragraph 3 of this Article or Articles 2a to 2f, the powers of the body responsible for review procedures shall be limited to awarding damages to any person harmed by an infringement. …’ Directive 2007/66
6 Recital 36 of Directive 2007/66 states: ‘This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for the right to an effective remedy and to a fair hearing, in accordance with the first and second subparagraphs of Article 47 of the Charter.’ Slovak law
7 Under Paragraph 3(1)(a) of Zákon č. 514/2003 Z. z. o zodpovednosti za škodu spôsobenú pri výkone verejnej moci (Law No 514/2003 on liability for damage caused in the exercise of public authority) of 28 October 2003 (Zbierka zákonov No 215/2003, p. 3966), in the version applicable to the dispute in the main proceedings (‘Law No 514/2003’), the State is liable for damage caused by an unlawful decision adopted by public bodies in the exercise of public authority.
8 According to Paragraph 5(1) of that law, a party to a procedure that suffered damage as a result of an unlawful decision issued in that procedure has a right to compensation.
9 In accordance with Paragraph 6(1) of that law, that right to compensation may be invoked only where such a decision has been annulled or amended, on the ground that it is unlawful, by a competent authority. The court ruling on compensation for such damage is bound by the decision of that authority.
10 Under Paragraph 15(1) of that law, the right to compensation for damage caused by an irregular administrative procedure must be the subject of a preliminary examination on the basis of a written application by the injured party requesting a preliminary examination of his or her right before the competent authority.
11 It is apparent from Paragraph 16(4) of Law No 514/2003, first, that if that authority does not grant that request or if it informs the injured party, in writing, that it will not grant it, that party may bring an action before a court for a ruling on that request and, secondly, that, in the context of its legal action, that party may claim compensation only to the extent of the claim and the title which were the subject of the preliminary examination.
12 Paragraph 17(1) of that law provides that compensation is to be paid for actual loss and loss of profit, unless otherwise specifically provided. The dispute in the main proceedings and the questions referred for a preliminary ruling
13 By a notice published on 16 November 2013, the contracting authority launched a call for tenders for the award of a public contract for works for the reconstruction, modernisation and construction of 16 football stadiums. The tendering association took part in that call for tenders.
14 Taking the view that that association had not satisfied the requirements of the contract notice relating, in particular, to its economic and financial standing, the contracting authority decided to exclude it from the contract in question. That exclusion decision was confirmed by a decision of the defendant in the main proceedings of 9 May 2014 and subsequently by a decision of its Board of Governors of 7 July 2014. The Krajský súd v Bratislave (Regional Court, Bratislava, Slovakia) having dismissed the action brought against that decision by judgment of 13 January 2015, that association brought an appeal against that judgment before the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic).
15 After making a request for a preliminary ruling to the Court that gave rise to the judgment of 13 July 2017, INGSTEEL and Metrostav (C‑76/16, EU:C:2017:549), the Najvyšší súd Slovenskej republiky (Supreme Court of the Slovak Republic) annulled those decisions of 9 May and 7 July 2014. On 3 April 2018, the defendant in the main proceedings adopted a new decision ordering the contracting authority to cancel the exclusion of the tendering association from the procedure for the award of the public contract at issue.
16 Since that procedure had in the meantime been closed by the conclusion of a framework agreement with the only tenderer that had remained in the competition following the exclusion of that association, the applicant in the main proceedings brought an action before the referring court, the Okresný súd Bratislava II (District Court, Bratislava II, Slovakia), seeking damages for the loss allegedly suffered as a result of the unlawful decisions of the defendant in the main proceedings and its Board of Governors.
17 Before that court, the applicant in the main proceedings claims that that damage is the result of the unlawful exclusion of the tendering association from the public contract at issue, the successful tenderer having been awarded the contract only because of that exclusion. It takes the view, in essence, that if that association had not been excluded from the contested award procedure at issue, that association would have obtained that contract, since its tender was more advantageous than that of that successful tenderer and satisfied all the conditions of the contract notice concerned.
18 In order to determine the amount of the damage allegedly suffered, the applicant in the main proceedings commissioned an expert’s report to quantify the loss of profit under the contract thus lost. On the basis of that expert’s report, it claims a loss of profit under the contract lost in the amount of EUR 819 498.10, excluding value added tax, and damages in the amount of EUR 2 500, corresponding to the costs incurred in preparing that expert report.
19 Before the referring court, the defendant in the main proceedings states that the tendering association was excluded at the end of the first stage of the procedure for the award of the contract concerned and that its reinstatement in that procedure would not have led automatically to the award of that contract to that association, since the contracting authority would have had to assess its tender in greater detail and, in particular, determine whether the price of that tender constituted an abnormally low tender.
20 Furthermore, the defendant in the main proceedings takes the view, relying in that regard on the judgment of 17 March 2005, AFCon Management Consultants and Others v Commission (T‑160/03, EU:T:2005:107), that the claim of the applicant in the main proceedings is purely hypothetical. The expert report submitted by the applicant is based on fictitious data, given, in particular, that the quantity of construction work provided for in the invitation to tender at issue would not necessarily be carried out in reality.
21 In that context, the applicant in the main proceedings points out that a claim which, for objective reasons, is not established with certainty cannot be classified from the outset as hypothetical. Unlike actual damage, the loss of profit does not consist in a reduction in the assets of the injured party, but in a loss of the expected profit, which must be reasonably foreseeable, in the normal course of events, in the absence of the unlawful act in question. As regards the performance of the public contract, the applicant in the main proceedings states that, if the contracting authority issues a call for tenders, it may be assumed that it has an interest in the performance of the contract at issue and that it intends to conclude a contract with the successful tenderer, as indeed is the case here, since the contracting authority concluded a contract with the successful tenderer for all the works provided for in the call for tenders at issue.
22 In the light of the arguments of the parties to the main proceedings, the referring court asks whether Paragraph 17 of Law No 514/2003 is compatible with Directive 89/665. It states that, during the proceedings before it, the applicant in the main proceedings claimed compensation for a missed opportunity by using the concept of ‘loss of profit’, which was closest to the right to compensation for damage resulting from the loss of opportunity on which it relied. Slovak law does not distinguish between the various categories of damage for which compensation may be awarded, so that the loss of an opportunity falls within the category of loss of profit. The applicant in the main proceedings adds that the Court has long and consistently held that, in the event of the unlawful exclusion of a tenderer from a public procurement procedure, that tenderer has the right to claim compensation for the damage which it has suffered as a result of the loss of an opportunity, which cannot be equated with loss of profit and which does not require such a high degree of probability of obtaining an economic advantage. It is compensation for a lost opportunity to make a profit and not compensation for the profit itself.
23 In those circumstances, the Okresný súd Bratislava II (Bratislava II District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the practice of a national court hearing a dispute involving a claim for compensation for damage caused to a tenderer who was unlawfully excluded from a public procurement procedure, pursuant to which compensation for loss of opportunity is denied, compatible with Article 2(1)(c) [of Directive 89/665], read in conjunction with Article 2(6) and (7) of [that directive]? (2) Is the practice of a national court hearing a dispute involving a claim for compensation for damage caused to a tenderer who was unlawfully excluded from a public procurement procedure, pursuant to which a claim for lost profits caused by the loss of opportunity to participate in a public contract is not part of the claim for compensation, compatible with Article 2(1)(c) [of Directive 89/665], read in conjunction with Article 2(6) and (7) of [that directive]?’ Consideration of the questions referred Admissibility
24 The defendant in the main proceedings disputes the admissibility of the questions referred for a preliminary ruling, arguing, in essence, that they are not relevant for the purposes of assessing the action in the main proceedings, since neither the admissibility of that action nor even the locus standi of the applicant in the main proceedings has been established by the referring court. Furthermore, the Court does not have jurisdiction to answer the questions referred for a preliminary ruling, in so far as, by those questions, the referring court seeks, in reality, a re-examination, by the Court, of the dispute in the main proceedings or directions concerning the procedure to be followed in the event that it decides not to award damages for loss of opportunity.
25 In that regard, it is clear from settled case-law that, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, 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. Consequently, where questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 32 and the case-law cited).
26 It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual and legal material necessary to give a useful answer to the questions submitted to it (judgment of 12 October 2023, INTER Consulting, C‑726/21, EU:C:2023:764, paragraph 33 and the case-law cited).
27 In the present case, the referring court is asking the Court not to apply the provisions of EU law referred to in the questions referred for a preliminary ruling to the dispute in the main proceedings, but rather to interpret them. In addition, that court, which must, according to the case-law, assume responsibility for the subsequent judicial decision (judgment of 13 January 2022, Regione Puglia , C‑110/20, EU:C:2022:5, paragraph 23 and the case-law cited), has set out with sufficient clarity the reasons why it considers that an interpretation of those provisions is necessary in order to resolve that dispute.
28 Furthermore, it should be borne in mind that, according to equally settled case-law, while it may be advantageous, depending on the circumstances, for the facts of a case to be established and for questions of national law to be settled at the time the reference is made to the Court, national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, necessitating a decision on their part (judgment of 4 June 2015, Kernkraftwerke Lippe-Ems , C‑5/14, EU:C:2015:354, paragraph 31 and the case-law cited). Accordingly, the argument of the defendant in the main proceedings that the action brought by the applicant in the main proceedings does not satisfy the conditions for admissibility laid down by Slovak law cannot establish that the questions referred for a preliminary ruling are inadmissible.
29 In those circumstances, the questions referred must be held to be admissible. Substance
30 By its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 2(1)(c) of Directive 89/665 must be interpreted as precluding national legislation or a national practice which excludes the possibility, for a tenderer who has been eliminated from a procedure for the award of a public contract because of an unlawful decision of the contracting authority, of being compensated for the damage suffered as a result of the loss of the opportunity to participate in that procedure with a view to obtaining the contract concerned.
31 It is apparent from the request for a preliminary ruling that the referring court is asking the Court, more specifically, to clarify whether that provision must be interpreted as meaning that persons harmed by an infringement of EU public procurement law and who are thus entitled to be compensated include not only those who have suffered loss as a result of not having obtained a public contract, namely their loss of profit, but also those who have suffered loss linked to the lost opportunity to participate in the procedure for the award of that contract and to make a profit as a result of such participation.
32 In accordance with the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only the wording of that provision but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 20 April 2023, DIGI Communications , C‑329/21, EU:C:2023:303, paragraph 41 and the case-law cited).
33 As regards, first, the wording of Article 2(1)(c) of Directive 89/665, it should be noted that that provision, which is worded in broad terms, provides that the Member States are to ensure that damages are awarded to persons harmed by an infringement of EU law on the award of public contracts, which, in the absence of any indication to distinguish different categories of damage, may cover any type of damage suffered by those persons, including that arising from the loss of the opportunity to participate in the procedure for the award of a contract.
34 That finding is supported, secondly, by the context of that provision.
35 According to settled case-law, individuals harmed by a breach of EU law attributable to a Member State have a right to compensation 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 damage sustained by those individuals (judgment of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe , C‑620/17, EU:C:2019:630, paragraph 35 and the case-law cited). Furthermore, the Court has repeatedly held that compensation for loss or damage caused to individuals as a result of infringements of EU law must be commensurate with the loss or harm sustained, in that it must, where appropriate, enable the loss or harm actually sustained to be made good in full (judgment of 28 June 2022, Commission v Spain (Breach of EU law by the legislature) , C‑278/20, EU:C:2022:503, paragraph 164 and the case-law cited). Article 2(1)(c) of Directive 89/665 gives concrete expression to those principles, inherent in the EU legal order (see, to that effect, judgment of 9 December 2010, Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others , C‑568/08, EU:C:2010:751, paragraph 87).
36 In that regard and in accordance with Article 1(3) of Directive 89/665, the review procedures provided for by that directive must be available at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. Moreover, as is apparent from recital 36 of Directive 2007/66, the system of legal remedies established by Directive 89/665 seeks to ensure full respect for the right to an effective remedy and to a fair trial, in accordance with the first and second paragraphs of Article 47 of the Charter of Fundamental Rights (see, to that effect, judgment of 14 July 2022, EPIC Financial Consulting , C‑274/21 and C‑275/21, EU:C:2022:565, paragraph 88 and the case-law cited).
37 No possibility of limiting that access is established by that directive. On the contrary, Member States may provide, under the second subparagraph of Article 2(7) of that directive, that, after the conclusion of a contract subsequent to its award, the powers of the body responsible for those review procedures are to be limited to awarding damages to any person harmed by an infringement. The action for damages provided for in Article 2(1)(c) of that directive was thus envisaged by the EU legislature as being the legal remedy of last resort, which must remain available to persons harmed by an infringement of EU law where they are de facto deprived of any possibility of benefiting from the effectiveness of one of the other remedies provided for in that provision.
38 That is, in particular, the case of an unlawfully excluded tenderer who, having requested and obtained the annulment of its exclusion from a procedure for the award of a public contract such as that at issue in the main proceedings, is, however, no longer able, on account of the closure of that procedure in the meantime, to benefit from the effects of that annulment.
39 While damage may result from the failure to obtain, as such, a public contract, it must be held that, in a case such as that identified in the preceding paragraph, it is possible for the tenderer who has been unlawfully excluded to suffer separate damage, which corresponds to the lost opportunity to participate in the procedure for the award of a public contract concerned in order to obtain that contract (see, to that effect, judgment of 21 December 2023, United Parcel Service v Commission , C‑297/22 P, EU:C:2023:1027, paragraph 69). In the light of the considerations set out in paragraph 37 above, such damage must be recoverable under Article 2(1)(c) of Directive 89/665.
40 Thirdly, the broad interpretation of Article 2(1)(c) of Directive 89/665 is supported by the objective pursued by that directive, of not excluding any type of harm from the scope of that directive.
41 It should, in particular, be borne in mind that, although Directive 89/665 cannot be regarded as providing for complete harmonisation and, therefore, as envisaging all possible remedies in public procurement matters (judgment of 26 March 2020, Hungeod and Others , C‑496/18 and C‑497/18, EU:C:2020:240, paragraph 73), the fact remains that, as stated in the sixth recital of that directive, the directive stems from the intention of the EU legislature to ensure that, in all Member States, adequate procedures permit not only the annulment of decisions taken unlawfully but also the compensation of persons harmed by an infringement of EU law.
42 That objective would be jeopardised if Article 2(1)(c) of Directive 89/665 were to be interpreted as meaning that it makes it possible, as a matter of principle, to exclude the possibility, for the persons referred to in Article 1(3) of that directive, of obtaining damages for harm which they claim to have suffered as a result of an infringement of EU public procurement law.
43 As the Court has held with regard to loss of profit, the total exclusion, in respect of the damage for which compensation may be granted, of the loss of the opportunity to participate in a procedure for the award of a public contract in order to obtain that contract, cannot be accepted in the event of an infringement of EU law since, especially in the case of economic or commercial disputes, such total exclusion of that loss of opportunity would be such as to make it practically impossible to make good the damage suffered (see, by analogy, judgments of 5 March 1996, Brasserie du pêcheur and Factortame , C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 87; of 13 July 2006, Manfredi and Others , C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 96 and the case-law cited; and of 17 April 2007, AGM-COS.MET , C‑470/03, EU:C:2007:213, paragraph 95).
44 Therefore, Article 2(1)(c) of Directive 89/665 must be interpreted as meaning that the damages which persons harmed by an infringement of EU public procurement law may claim under that provision may cover the loss or damage suffered as a result of the loss of opportunity.
45 It should, however, be noted that, although Article 2(1)(c) requires that damages may be awarded to persons harmed by an infringement of EU public procurement law, it is, in the absence of EU provisions in that field, for the legal order of each Member State to determine the criteria by reference to which damage resulting from the loss of an opportunity to participate in a procedure for the award of a public contract in order to obtain that contract must be established and assessed, provided that the principles of equivalence and effectiveness are observed (see, to that effect, judgment of 9 December 2010, Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others , C‑568/08, EU:C:2010:751, paragraph 90 and the case-law cited).
46 In the present case, it is apparent from the request for a preliminary ruling that Article 17 of Law No 514/2003 expressly refers, as recoverable damage, only to ‘actual damage’ and ‘loss of profit’. At the hearing, the Slovak Government stated that, according to the settled case-law of the Slovak courts, a ‘loss of profit’ must be made good where it is highly probable, or even close to certain, that, having regard to the existing circumstances of the case, the person concerned would have made a profit. However, referring to the European Commission’s position that the Slovak courts should use all national means to enable a tenderer unlawfully excluded from a public contract to effectively claim damages for a lost opportunity, that government stated at the hearing that there is nothing to prevent a claimant from making use of the remedies available to it to assert its right and from adducing evidence to prove it.
47 In that regard, it therefore suffices to recall that, according to the case-law of the Court, in order to ensure the effectiveness of all provisions of EU law, the principle of primacy requires, inter alia, national courts to interpret, to the fullest extent possible, their national law in conformity with EU law (judgment of 4 March 2020, Bank BGŻ BNP Paribas , C‑183/18, EU:C:2020:153, paragraph 60 and the case-law cited) and that that obligation to interpret national law in conformity with EU law requires national courts to change established, and even settled, case-law if it is based on an interpretation of domestic law that is incompatible with the objectives of a directive (see, to that effect, judgment of 3 June 2021, Instituto Madrileño de Investigación y Desarrollo Rural, Agrario y Alimentario , C‑726/19, EU:C:2021:439, paragraph 86 and the case-law cited).
48 In the light of the foregoing considerations, the answer to the questions raised is that Article 2(1)(c) of Directive 89/665 must be interpreted as precluding national legislation or a national practice which excludes the possibility, as a matter of principle, for a tenderer excluded from a procedure for the award of a public contract because of an unlawful decision of the contracting authority, of being compensated for the damage suffered as a result of the loss of the opportunity to participate in that procedure with a view to obtaining the contract concerned. Costs
49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fifth Chamber) hereby rules: Article 2(1)(c) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007, must be interpreted as precluding national legislation or a national practice which excludes the possibility, as a matter of principle, for a tenderer excluded from a procedure for the award of a public contract because of an unlawful decision of the contracting authority, of being compensated for the damage suffered as a result of the loss of the opportunity to participate in that procedure with a view to obtaining the contract concerned. [Signatures] * Language of the case: Slovak.