Skada vid överprövning : Skaderekvisitet i mål om överprövning av offentliga upphandlingar

Sammanfattning: This thesis examines the requirement that a supplier must have been harmed or risked being harmed in the review procedures of public procurements. The requirement for harm is analysed using the Swedish legal dogmatic method in connection with EU law. The requirement for harm is part of the implementation of the Remedies Directive, which balances the interest of protecting suppliers from unlawful decisions against the interest of effective and rapid procurement and review procedures. A review is a non-financial remedy in which the purpose is to act against unlawful decisions, preferably at a stage when no actual harm has occurred. In the case of a review, harm means that the supplier's ability of being awarded the contract is impaired. The concept of harm is thus more abstract than the required harm within tort law to receive damages (skadestånd). There are two kinds of requirements for harm in the Swedish Public Procurement Act for the review procedure. The first is that a supplier according to Chapter 20. Section 4 must consider itself to have been harmed or risked being harmed to apply for a review. Thus, it is the supplier's own perception of harm that is relevant, and the requirement is of a subjective nature. However, according to a precedent from the Swedish Supreme Administrative Court in conformity with the Remedies Directive, the supplier is also required to have an interest in obtaining the particular contract that is up for review. The second requirement is in the court's review according to Chapter 20. Sections 6 or 13-13(b), depending on the type of case. It means that a supplier must show that it has been harmed or risked being harmed due to an infringement of the Swedish Public Procurement Act. The harm must have a causal link with the alleged infringement and the particular contract up for review. Thus, the supplier needs to describe in a clear and explicit manner how the infringement has resulted in harm or risk of harm and the requirement is of a more objective nature. According to another precedent from the Swedish Supreme Administrative Court, the second requirement is not fulfilled unless the supplier has done enough to limit the harm which it is subject to. For example, by asking questions regarding an infringement in the contract documents before submitting a tender. The European Court of Justice has ruled that the objectives of the Remedies Directive are not fully implemented if a supplier is allowed to apply for a review at any stage, as has long been the case in Swedish law. However, there is no limitation period or general obligation for suppliers to limit harm in the event of a review according to EU law or previous Swedish law. Thus, there is an uncertainty regarding the exact scope of the second requirement of harm.