Damages for Breach of the EC Public Procurement Rules from a Danish Perspective

Abstract

A few years ago, there was an almost total absence of successful actions for damages in the field of the enforcement of EC public procurement rules. This has changed, as there are now several examples of successful actions in some Member States, including actions for loss of profit. This article analyses a number of fundamental questions of general interest concerning damages for the breach of public procurement rules. It considers the conditions for damages and the question whether a contracting authority can preclude actions for damages by inserting a time-limit for bringing proceedings in the tender conditions and suggests that this is not the case. Finally, it deals with compensation and the award of damages for potential loss of profit and trends in Danish case law regarding damages for the breach of EC public procurement law. The Danish Complaints Board for Public Procurement has emphasised the deterrent effect of damages and deviates from the ordinary Danish rules in its approach to damages in business relations in its leading case law.