Damages claims as a legal remedy in disputes arising from procurement procedures under EU law

Abstract

European Union law has largely harmonized the legislation of the Member States on public procurement. At the same time, the provisions of the EU law on liability to procurement participants are less detailed and specific than other provisions of EU procurement law. Some clarifications can be found in the Court of justice’s jurisprudence. EU case law establishes legal tests to assess the possibility of finding the member state accountable for violation of the provisions of Union legal acts, including for violation of procurement legislation, and also formulates a number of general requirements for national legislation in terms of recovery of losses caused by violation of the rights of procurement participants. In particular, it is not allowed to make the possibility of recovering losses dependent on the presence of fault in the actions of the customer, the need to vest the contractor the right to seek compensation not only for actual loss but also for loss of profit plus interest, etc. However, the scope of EU procurement law is limited only to issues of establishing grounds of liability, but does not cover the procedural aspects applicable to claims and actions filed by economic operators, which are subject to national legal norms.