In its judgment of 3 May 2018 in EUIPO v. European Dynamics (C‑376/16 P), the Court of Justice of the European Union partially sets aside the General Court’s judgment of 27 April 2017. In the latter judgment, the General Court annulled EUIPO’s decision to award a public contract and subsequently ordered EUIPO to compensate European Dynamics (the unsuccessful tenderer) for its loss of an opportunity to have been awarded the concerned contract.
The Court of Justice quashes the General Court’s decision that EUIPO had breached its duty of diligence and the principle of equal treatment between tenderers but upholds the other grounds for annulment of the award decision.
Despite confirming the annulment, the Court of Justice nonetheless rejects the claim for damages on the grounds that European Dynamics did not provide sufficient evidence that it would have been ranked first or would have obtained the contract at issue. In doing so, the Court reaffirms that the conditions for obtaining non-contractual damages should be interpreted strictly in case of damage claims from unsuccessful tenderers. The Court already followed this strict approach in its judgment of 20 December 2017 in EUIPO v. European Dynamics (C‑677/15 P) but the more recent judgment illustrates that this case-law is here to stay.
For further information on this case or other questions relating to public procurement, please contact Peter Teerlinck or Raluca Gherghinaru.