A bidder is entitled to compensation if it has been unlawfully excluded from an award procedure. He can claim damages for the loss of an opportunity. This has now been decided by the European Court of Justice (ECJ) (Ref.: C-547/22 of 06/06/2024). This principle may also not be violated by national regulations.

The case concerned a public procurement procedure in Slovakia. The lawsuit was brought by a bidder from a bidding consortium that had been excluded. The ECJ has now ruled that the Directive on public procurement review obliges member states to pay compensation if EU law has been breached during the award process and damage has been caused as a result. According to the ECJ, this can also include the damage suffered by a bidder due to the loss of an opportunity because it was unlawfully prevented from taking part in the award procedure.

Contact persons for all questions of public procurement and private construction law in our practice are Rechtsanwalt Janko Geßner, Madeleine Riemer, Attorney at Law, Attorney at Law Dr Janett Wölkerling, M. mel. and Rechtsanwalt Philipp Buslowicz, LL.M..