Administrative, Public Contracts, Direct Award, Damages for Loss of Opportunity, Council of State, Fifth Section, Ruling No. 4099 of May 21, 2026
On damages for loss of opportunity in the event of an unlawful recourse to direct award during compliance proceedings
Public contracts and public administration obligations – Direct award – Unlawfulness – Action for damages – Compliance
During compliance proceedings, damages for failure to award a contract resulting from an unlawful direct award must be calculated in accordance with the criteria established during the preliminary hearing, in the judgment of conviction, and in accordance with the criteria pursuant to art. 34, paragraph 4 of the Code of Civil Procedure, and therefore taking into account on the one hand the entire consideration paid by the administration within the scope of the invalid business relationship, the deduction of individual cost items not being permitted where their factual and accounting assumptions are not adequately demonstrated and on the other hand the extent of the loss of chance. (1).
The judgment was issued in compliance with the ruling of the Council of State, Section V, of 3 June 2021, no. 4247, with which the section, after having referred a preliminary ruling to the Court of Justice of the EU, with order no. 5581 of 6 August 2019 (News UM no. 97/2019) following the decision of the Court, issued with order of Section IX, of 30 June 2020, C-618/19, (subject of News UM 86/2020), in declaring the acts relating to the direct award between the region ………. and……… in the matter of regional car taxes to be unlawful, had upheld the claim for damages advanced by the appellant company, with a conviction in accordance with the criteria pursuant to art. 34, paragraph 4, of the Code of Civil Procedure in light of these parameters.
Regarding the quantification of damages, the panel establishes that the Region ……. shall, pursuant to Article 34, paragraph 4, of the Code of Civil Procedure, within sixty days of notification or communication of this decision, formulate a compensation proposal that takes into account, in estimating the profit, the likelihood of awarding the contract based on market characteristics and the performance of similar procedures, considering a percentage of profit based on data derived from the current management of the directly awarded service in question.
To this end, the basis of the fixed fee agreed upon as a lump sum and any “measurement” fees paid during and as a result of the relationship shall be considered. This amount shall be subject to revaluation and interest as required by law. The entire cost of compensation shall be borne by the Region ……, in its capacity as the entity that should have implemented the public tender procedure required by the current rules of European Union law.
Public contracts and public administration obligations – Direct award – Action for damages – Loss of opportunity
The damages for loss of opportunity, resulting from the failure to call a public tender, must be determined by applying to the achievable profit a reduction proportional to the probability of awarding the contract, which must be deduced from objective elements such as market characteristics and the performance of similar procedures. (2).
The section, in upholding the appeal for compliance, highlighted that the relevant estimate had been carried out by the region taking into account not the tenders held in other regions (deemed to be of little significance due to their small number), but rather the entities registered in the register of entities authorized to manage the liquidation and assessment of taxes and the collection of taxes of the provinces and municipalities.
This method of proceeding was not considered correct, however, in light of the provisions of the grounds of judgment no. 4247 of 2021, which expressly referred to “[…] the performance of similar procedures” as well as “market characteristics.”
In the section’s opinion, the reference, first and foremost, to the characteristics of the specific reference market required that priority be given (where applicable) to tenders held in other regions with a similar economic context.
Administrative Justice – Compliance Judgment – Commissioner ad acta – Appointment – Powers
The administration’s persistent failure to comply with the obligations arising from the res judicata legitimises the appointment of a commissioner ad acta, endowed with investigative and substitute powers to fully implement the decision, including through direct acquisition of the elements necessary to determine the obligatory relationship defined by the res judicata. (3).
(1) There are no precedents in the exact terms.
(2) Compliant: Council of State, Section V, 3 June 2021, no. 4247, compliance with which is being discussed here.
(3) Compliant: In general, regarding the requirements for the appointment of the commissioner ad acta and the substitute powers, most recently, ex multis Council of State, Section IV, 22 April 2026, no. 3142.
Source: Administrative Justice
