Nuclear Decommissioning Authority v Energysolutions EU Ltd (Now Called ATK Energy EU Ltd): SC 11 Apr 2017

This is an appeal on preliminary points of European Union and domestic law regarding the circumstances in which damages may be recoverable for failure to comply with the requirements of the Public Procurement Directive (Parliament and Council Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts as given effect in the United Kingdom by the Public Contracts Regulations 2006. The claimant was part of a consortium bidding for a contract for nuclear decommissioning. They complained that the process did not meet the requirements. The issues before the court related to the availability of damages for a breach of the procurement requirements, and whether the matter required a reference to the ECJ.
Held: No reference was required, and the decision of the CA was confirmed in part (see below).
‘there is in my view very clear authority of the Court of Justice confirming that the liability of a contracting authority under the Remedies Directive for breach of the PP Directive is assimilated to that of the state or of a public body for which the state is responsible. ‘
However the CA erred in considering that no additional elements were necessary before a claim for damages could be made: ‘The scheme of the Remedies Directive is a balanced one. The Francovich conditions represent the Court of Justice’s conclusion as to the appropriate minimum protection by way of damages which an economic operator can expect. Although there is no Marleasing imperative to construe the scheme so far as possible consistently with the Francovich conditions, it is I think a natural assumption that the UK legislator will not go further than required by EU law when implementing such a scheme, without considering this and making it clear. That is fortified by the legislator’s clear intention not to gold plate when substituting the new Part 9 scheme for the old in 2009. In these circumstances, I consider that the 2006 Regulations as amended in 2009 should be read as providing for damages only upon satisfaction of the Francovich conditions. That is also consistent with the use of the word ‘may’ which otherwise seems to me to have no real significance.’ NDA’s appeal as to this element succeeded.
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, Lord Carnwath
[2017] UKSC 34, [2017] WLR(D) 272, [2017] 3 CMLR 13, [2017] BLR 351, [2017] 4 All ER 1, [2017] 1 WLR 1373, 171 Con LR 16, [2017] PTSR 539, UKSC 2016/0006
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 010317 am Video, SC 01032017pm Video, SC 02032017am Video
(Parliament and Council Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, Public Contracts Regulations 2006
England and Wales
Citing:
See AlsoEnergysolutions EU Ltd v Nuclear Decommissioning Authority TCC 29-Jul-2016
Claim challenging the procurement of decommissioning contracts.
Held: CFP should have been disqualified from the competition for failing two threshold requirements, and, in any event, RSS would have won the competition had the NDA not made . .
Appeal fromEnergysolutions EU Ltd v Nuclear Decommissioning Authority CA 15-Dec-2015
The claimant had tendered for a part in a major nuclear decommissioning project. . .
CitedGebroeders Beentjes Bv v State Of The Netherlands ECJ 20-Sep-1988
(Approximation Of Laws ) Procedure for the award of public works contracts.
The provisions of the Directives were unconditional and sufficiently precise to be relied upon by persons before national courts, despite the absence of explicit . .
CitedFrancovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
CitedBrasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
CitedGesellschaft fur Abfallentsorgungs-Technik GmbH (GAT) v Osterreichische Autobahnen und Schnellstrassen AG (OSAG) ECJ 19-Jun-2003
Europa Reference for a preliminary ruling – Public contracts – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Power of the body responsible for review procedures to consider . .
CitedKobler v Republik Osterreich ECJ 30-Sep-2003
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from . .
CitedManfredi v Lloyd Adriatico Assicurazioni SpA; Antonio Cannito v Fondiaria Sai SpA, Nicolo Tricarico; Pasqualina Murgolo v Assitalia SpA C-295/04 ECJ 13-Jul-2006
ECJ Article 81 EC- Competition – Agreements, decisions and concerted practices – Accidents caused by motor vehicles, vessels and mopeds – Compulsory civil liability insurance – Increase in premiums – Effect on . .
CitedRizeni Letoveho Provozu UR SP v Bundesamt fur Finanzen ECJ 15-Feb-2007
Europa (Taxation) Thirteenth VAT Directive Article 2(2) GATS Most-favoured-nation clause Interpretation of secondary Community law in the light of international agreements concluded by the Community . .
CitedCombinatie Spijker Infrabouw v De Jonge Konstruktie And Others (Law Relating To Undertakings) ECJ 14-Sep-2010
ECJ (Opinion) Public procurement – Review procedures concerning the award of public supply and public works – Provisional Measures – Damage and losses arising from breach of EU law – Criteria for the allocation . .
CitedStrabag and Others (Freedom To Provide Services) ECJ 30-Sep-2010
ECJ Directive 89/665/EEC – Public procurement – Review procedures – Actions for damages – Unlawful award – National rule on liability based on a presumption that the contracting authority is at fault. . .
At CAEnergy Solutions EU Ltd v Nuclear Decommissioning Authority TCC 23-Jan-2014
This litigation concerns the procurement process for a contract in relation to the decommissioning of nuclear installations. The Claimant is a company which provides integrated waste management and decommissioning services for the nuclear industry. . .
CitedAssociation Justice and Environment v Commission ECFI 23-Jan-2017
ECJ (Judgment) Access to documents – Regulation (EC) No 1049/2001 – Documents relating to an infringement procedure opened by the Commission against the Czech Republic – Refusal of access – Exception concerning . .
At TCC (2)Energysolutions EU Ltd v Nuclear Decommissioning Authority TCC 29-Jul-2016
Claim challenging the procurement of decommissioning contracts.
Held: CFP should have been disqualified from the competition for failing two threshold requirements, and, in any event, RSS would have won the competition had the NDA not made . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
DisapprovedMatra Communication Sas v Home Office CA 25-Feb-1999
In the absence of comparable situations, a member state is entitled to choose the time limits within which a public service contract is to be challenged, provided only that it did not make it impossible to challenge and there was no prejudice . .
CitedRegina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
CitedPhonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
CitedNorbrook Laboratories v Ministry of Agriculture, Fisheries and Food ECJ 2-Apr-1998
ECJ Directives 81/851/EEC and 81/852/EEC – Veterinary medicinal products – Marketing authorisation . .

These lists may be incomplete.
Updated: 15 February 2021; Ref: scu.581646