HFD rejects damages fee for in-house school-bus deal

Högsta förvaltningsdomstolen has dismissed Konkurrensverket's appeal in a disputeDomstol over a school-transport contract between two sister companies owned by Uddevalla kommun. The court also refused the authority's request for a preliminary ruling from the EU court.Domstol The judgment, in mål 6926-25, was delivered on 23 October 2026.

Uddevalla Skolskjuts AB had procured school transport from its sister company Uddevalla Omnibus AB without prior advertisingDomstol. Both companies are controlled by Uddevalla kommun.Domstol Konkurrensverket applied to Förvaltningsrätten i Göteborg for a procurement damages feeDomstol, arguing that the deal was an unlawful direct awardDomstol: the horizontal in-house exception did not apply because Uddevalla Omnibus, as counterparty, did not meet the activity criterionDomstol, and the procurement directive — which in the authority's view requires the counterparty to meet the criterionDomstol and has direct effect — could be invoked before the courtDomstol.

Förvaltningsrätten granted the applicationDomstol, but Kammarrätten i Göteborg reversed it on appeal in October 2025Domstol, finding the directive's wording too imprecise on whether any activity criterion applies to horizontal in-house procurement and who must meet it for direct effect to support a fee claimDomstol.

Högsta förvaltningsdomstolen holds that the procurement complied with the Swedish exception.Domstol Under 3 kap. 15 § lagen (2016:1145) om offentlig upphandling, a horizontal procurement counts as in-house when the procuring authority is subject to control corresponding to the controlling person's control over its own administration, the controlling person also controls the counterparty, the authority performs more than 80 per cent of its activities for the controlling person or entities it controls, and there is no direct private ownership interest in the counterparty.Domstol There is no room to read the provision as also requiring the controlled counterparty to meet the activity criterionDomstol, so the procurement fell outside the Act's scopeDomstol.

Nor could a fee be imposed for breach of the directive as such. Under the applicable wording of 21 kap. 1 § 3 of the Act, a general administrative court may order a procuring authority to pay a special fee only where a contract was concluded without observing the Act's own provisions on prior advertising, including 10 kap. 1 §.Domstol The wording permits no fee for breach of a rule found only in the procurement directive and not in the Act.Domstol

EU law cannot fill that gap either. The procurement directive (2014/24/EU), including its Article 12 on public-sector cooperation, contains no provisions on sanction feesDomstol; the relevant sanctions sit in the first remedies directive (89/665/EEG)Domstol, whose Article 2e lets Member States prescribe alternative sanctions — fees or shortening of the contract term — only for breaches of certain standstill rulesDomstol. Nothing in EU law prescribes a fee as an alternative sanction for an unlawful direct awardDomstol, so there is no EU-law basis for ordering Uddevalla Skolskjuts to payDomstol — regardless of how Article 12.2 should be interpreted and regardless of whether its provisions have direct effectDomstol. With that settled, the questions for a preliminary ruling needed no answer.Domstol

Legal basis: 3 kap. 15 § and 21 kap. 1 § 3 lagen (2016:1145) om offentlig upphandling, Article 12 of Directive 2014/24/EU and Article 2e of Directive 89/665/EEG, as applied in Högsta förvaltningsdomstolens dom in mål 6926-25.