In its Judgment of 8 November 2012 in case C-469/11 Evropaiki Dynamiki v Commission, the CJEU has clearly settled the rules controlling limitation periods applicable to claims for damages resulting from the (illegal) rejection of tender offers.
The Judgment of the CJEU is straightforward:
39 In the present case, the claim for compensation made by Evropaïki Dynamiki is based on the rejection of the tender which it submitted in a Commission tendering procedure.
40 In such a situation, as the General Court correctly ruled in the order under appeal, without Evropaïki Dynamiki having challenged that finding, the decision of the contracting authority to reject the tender submitted constitutes the loss-causing event capable of giving rise to non-contractual liability on the part of that authority. The adverse effects of such a decision affect the tenderer concerned once its tender has been rejected. Thus, knowledge of such a decision by the tenderer must, in principle, be regarded as constituting the starting point of the limitation period, not knowledge of the grounds therefor (C-469/11 at paras 39 and 40, emphasis added).
The decision reached by the CJEU seems sensible at face value. However, once the specific circumstances of the case are taken into consideration, the strict limitation imposed by the CJEU may seem disproportionate. In view of the CJEU:
42 [...] it is also not relevant that the [rejection] decision of 15 September 2004 was annulled on 10 September 2008 by the Judgment of the General Court in Case T‑465/04 Evropaïki Dynamiki v Commission on the ground of deficient reasoning. It is in fact immaterial, as regards the starting point of the period of limitation, whether the European Union’s unlawful conduct has been established by a judicial decision (Judgment in Case C‑282/05 P Holcim (Deutschland) v Commission, paragraph 31).
43 In any event, Evropaïki Dynamiki has not argued that it did not have a reasonable time in which to submit its application before the expiry of the limitation period by reason of the fact that the latter began to run from the time at which it became aware of the Commission’s decision rejecting its tender, or even because of the insufficient reasoning of that decision (C-469/11 at paras 42 and 43,emphasis added).
In my view, while the illegality of the rejection has not been declared, it is impractical to think that the aggrieved tenderer can sue for damages with any chance of succeeding before that key point of law is settled. Therefore, the decision of the CJEU seems rather harsh, since the actual possibility to claim for damages did not accrue until after the rejection decision had been declared illegal. Bearing that in mind, the reasoning that the would be claimant has not argued that it did not have a reasonable time in which to submit its application before the expiry of the limitation period does not hold water (precisely, the action against the dismissal of his claim due to the expiry of the limitation period seems to be based on nothing but that argument).
In my opinion, then, we would need to set a two-step limitation period for claims for damages due to the illegal rejection of tenders, which impose a maximum period of (say) 5 years always provided that the claimant has at least (say) 1 year to file a claim from the moment the rejection decision is declared illegal by a resolution having the force of res iudicata. Otherwise, many damages claims can be preempted exclusively as a result of lengthy appeals procedures, which does not seem desirable (nor fair).