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The case law of the EU Courts gives few examples of effective awards of damages in relation to procurement by the EU institutions. This is mainly due to the strict approach followed by the courts with regard to the condition of "actual and certain damage". Unsuccessful tenderers cannot obtain compensation for the loss of income related to a public contract unless they establish that they would be entitled to the award of the contract. This approach is evolving in line with the development of the case law related to the loss of chance. In the context of interim measures, the General Court has departed from its earlier case law which denied the possibility of compensating for damage resulting from the loss of the chance to obtain a public contract. That change in reasoning has been accepted in recent cases relating to the substance of the damages claims. Since the liability of the Union and that of the Member States for breaches of EU law are governed by the same conditions, the approach taken by the EU Courts in relation to the liability of the EU institutions might serve as guidance for comparable claims resulting from breaches of national rules implementing the EU public procurement directives.
