Court Adopts Implied Criteria and Causal Connection Tests

By Paul Emanuelli

In its December 2017 decision in European Union Intellectual Property Office v. European Dynamics Luxembourg SA, the European Court of Justice overturned a lower court ruling that found a government body liable for relying on unstated sub-criteria and weightings. The case dealt with a tendering process for IT project management services. The court found that the unstated criteria and weightings could be defensible if they met an implied terms test. Furthermore, the court determined that the third-ranked complainant was not entitled to a remedy since it failed to show how the alleged infractions impacted the rankings and cost it the contract award.