Opinion of Advocate General Van Gerven delivered on 15 July 1993

1 Original language: Dutch.

2 Article 2.4 of the contract provides for both the abovemen lioned procedure and the arbitration clause.

3 For the reference to that Ministerial Decree, see below, point 4 and note 6.

4 Article 2.4 ot the contract

5 Article 2.1 of the contract.

6 Article 2.2 of the contract.

7 Article 2.6 of the contract.

8 The Royal Decree was published in the Moniteur Belge of 27 July 1977, p. 9552; the general conditions were published in the Moniteur Belge of 8 September 1977, p. 10931.

9 Article 35(1) of the Royal Decree provides: Tenderers shall continue to be bound by their tender, as possibly amended by the administrative authority, for a period of 60 calendar days as from the day after the opening of tenders, unless the special conditions provide for a different period. (Emphasis added).

10 See Case 306/81 Verras y Parliament [1983] ECR 1755. The citation comes from paragraph 9 of that judgment, in which, in turn, the Court refers to the Amylum case: see Case 101/81 Amylum v Council [1982] ECR 3107, in particular at para. 25.

11 The time limit of 18C days from the day of the opening of tenders gave the Parliament until 27 July 1988 to notify the tenderers oi its choice

12 The situation in which the tenderer agrees to maintain his tender only if he is given a higher price is regulated by the second paragraph of Article 38 of the Royal Decree: in that case, the competent authority may, instead of recommencing the procedure, agree to the price increase, refer to the other tenderers in the order in which their tenders arc ranked, or ash all the other tenderers to review their prices.

13 See inter alia Civ. Brussels, 8 June 1984, L'entreprise et le Droit, 1985, p. 108, in particular, p. 110 (damage can only be categorized as very significant where it represents at least 10 to 15% of the amount of the tender); Civ. Brussels, 18 September 1986, L'entreprise et le Droit, 1991, p. 388, more particularly at page 392 (damage following an increase in prices of around 3.5%, is not very significant damage).