25First, the Oberster Gerichtshof has doubts as to the conformity of Paragraph 115(1) of the StVergG with Directive 89/665. Referring to the judgments in Case C-275/03 Commission v Portugal [2004] and Case C-70/06 Commission v Portugal [2008] ECR I-1, it is uncertain whether all national legislation which, in any way, makes the tenderer’s right to damages conditional on a finding that the contracting authority is at fault must be held to be incompatible with that directive, or only national legislation which imposes on the tenderer the burden of proving that fault.
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