Court of Justice 14 September 2010, C-568/08 (Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others v Provincie Drenthe.)

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In this Opinion of Advocate General Cruz Villalón in Case C-568/08, the Advocate General addresses a reference from the Rechtbank Assen (Netherlands) concerning the compatibility of Netherlands interim relief proceedings with Directive 89/665/EEC in the context of a disputed public works contract award, and whether EU law establishes criteria for attributing liability and quantifying damages under Article 2(1)(c) of that Directive. The Advocate General opines that Question 1 is inadmissible as hypothetical, that the Netherlands summary interim procedure is not precluded by Directive 89/665 absent demonstrated adverse effect on EU law effectiveness, and that Directive 89/665 does not prevent a court in interim proceedings from taking a view subsequently deemed contrary to EU procurement rules by the court on the substance, provided the national system secures the results required by the Directive. As to damages, the Advocate General opines that the criteria for determining and quantifying compensation under Article 2(1)(c) are governed by national law subject to the principles of effectiveness and equivalence, requiring that proof of injury not be so strict as to undermine the provision's effectiveness, that interest must be included, and that loss of profit cannot be excluded as a head of damage.AI