CJEU: INGSTEEL II (Case C-547/22)

Compensation for Lost Opportunity – A Pivotal Judgment That Changes Little

Abstract

The judgment of the Court of Justice of the European Union in INGSTEEL II (C-547/22) appears, at first glance, to mark a significant step in the development of damages remedies for breaches of EU public procurement law, by precluding national legislation or practice that categorically excludes compensation for harm resulting from the loss of an opportunity to obtain a public contract. This commentary argues, however, that the judgment is less transformative than it initially seems. Although the Court confirmed that loss of opportunity cannot be excluded as a matter of principle from the scope of Article 2(1)(c) of the Remedies Directive, it neither recognised loss of opportunity as an autonomous head of damage under EU law nor clarified its content, conditions, or quantification.

The paper situates INGSTEEL II within the broader context of the Remedies Directive’s minimal harmonisation, the Court’s fragmented case law on damages (including Commission v Portugal, Strabag, Spijker, and the Fosen-Linjen saga), and the tension between EU-level effectiveness requirements and Member States’ procedural autonomy. Particular attention is paid to the Slovak legal context underlying the reference, revealing that the judgment does not substantially alter Slovak law, which already allows—at least in theory—compensation for loss of opportunity within the concept of lost profit.

The analysis demonstrates that INGSTEEL II employs a “double-negative” approach: rather than defining compensable harm, the Court merely prohibits its absolute exclusion. As a result, key issues—such as causation, evidentiary standards, and damages in the context of framework agreements—remain unresolved and are left to national law. The commentary concludes that judicial harmonisation through case law cannot provide a coherent or comprehensive system of compensation for unlawfully excluded tenderers and argues that meaningful clarification requires legislative reform of the Remedies Directive, potentially inspired by the structure of Directive 2014/104/EU on antitrust damages.