31.5.2018

Official Journal of the European Union

C 186/12

JUDGMENT OF THE COURT

of 31 October 2017

in Case E-16/16

Fosen-Linjen AS v AtB AS

(Public procurement — Directive 89/665/EEC — Directive 2004/18/EC — Claim for compensation — Culpability — Gravity of the breach — Burden of proof — Verification of the tender submitted — Principles of effectiveness, equal treatment, transparency and proportionality)

(2018/C 186/06)

In Case E-16/16, Fosen-Linjen AS v AtB AS — REQUEST to the Court pursuant to Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Frostating Court of Appeal (Frostating lagmannsrett) concerning 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, and in particular Article 1(1) and Article 2(1)(c) thereof, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Benedikt Bogason (ad hoc), Judges, gave judgment on 31 October 2017, the operative part of which is as follows:

The award of damages according to Article 2(1)(c) of Directive 89/665/EEC does not depend on whether the breach of a provision of public procurement law was due to culpability and conduct deviating markedly from a justifiable course of action, or whether it occurred on basis of a material error or whether it is attributable to the existence of a material, gross and obvious error. A simple breach of public procurement law is in itself sufficient to trigger the liability of the contracting authority to compensate the person harmed for the damage incurred, pursuant to Article 2(1)(c) of Directive 89/665/EEC, provided that the other conditions for the award of damages are met, including, in particular, the condition of a causal link.

Directive 89/665/EEC does not preclude a requirement according to which the award of damages is conditional on the aggrieved tenderer proving with clear, that is, qualified preponderance of evidence that he should have been awarded the contract had the contracting authority not committed the error, as long as the principles of equivalence and effectiveness are respected.

Directive 89/665/EEC does not preclude national law that exempts a contracting authority from liability for positive contract interest where the tender procedure, due to an error by the contracting authority, was cancelled in compliance with EEA public procurement law, even where that error was not invoked during the tender procedure and is different from the error invoked by the claimant. It is for the contracting authority to prove the existence of such an error and justify its decision to withdraw the tender procedure.

The award criteria of a tender procedure must be formulated in such a way as to allow all reasonably well-informed tenderers of normal diligence to interpret them in the same way. The contracting authority is furthermore obliged to verify whether the information submitted by the tenderer is plausible, in the sense that the respective tenderers are capable of providing what was offered in the bid, and whether that bid corresponds to the requirements set out by the contracting authority. The verification requirement must comply with the principle of proportionality. As long as all tenderers are treated equally, the contracting authority may have regard to any information provided in the tender in order to make an effective verification of the information linked to the award criteria. It is for the referring court, having regard to the principles of equal treatment, transparency, and proportionality, to determine whether these conditions were complied with in the underlying tender procedure.