In another case involving European Dynamics v European Union Intellectual Property Office, the CJEU annulled the contracting authority's decision for the following reasons:
The claimant also argued that there was a conflict of interest in the procedure. A sub-contractor to one of the successful bidders was part of the same group of companies that had been involved in preparing the tender specifications. The CJEU was satisfied that the contracting authority had taken steps to mitigate against the conflict of interest by seeking clarification from the bidder that no conflict of interest had arisen.
The CJEU agreed to annul the decision to award the framework and that it was appropriate to award damages, and ordered the parties to negotiate a settlement (failing which the court would determine the level of damages).
Consistent with the current jurisprudence of the CJEU in deciding how to award compensation for loss of opportunity, the Court considered the following factors to be relevant:
This is yet another case where authorities' decisions to award a framework have been cancelled by a court. Authorities may well want to reflect on the way in which their frameworks are established and how call offs are made in compliance with the rules.