The Swedish Supreme Court establishes the liability of a contracting authority to pay damages for the positive contractual interest to a tenderer who would have won the tender procedure if the procurement law had been correctly applied (Ishavet)

I. Introduction A tenderer who otherwise would have won the procurement procedure, if the procurement law had been correctly applied by the contracting authority shall be entitled to receive compensation for the positive contractual interest. Moreover the liability to pay damages does not depend on the substantiation of either intent or negligence, if the failure is related to a manifest infringement of the EU law. Another important statement of this judgment is the one reminding that the EU law is applicable both above and below the thresholds of the procurement directives [1]. II. The legal framework The Government Bill 2006/07:128 affirms that the article 7(6) of Act (1992:1528) relies upon the Directive 89/665/EEC ('Remedies Directive') [2]. The articles 1(3) and 2(1)(c) of the

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Emanuela Matei, The Swedish Supreme Court establishes the liability of a contracting authority to pay damages for the positive contractual interest to a tenderer who would have won the tender procedure if the procurement law had been correctly applied (Ishavet), 31 May 2007, e-Competitions May 2007, Art. N° 49471

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