The EFTA Court adopted two recent Judgments on the liability threshold for damages claims for breaches of EU/EEA public procurement law. In Fosen-Linjen I, it followed the so-called separation thesis of procurement damages and State liability and found that ‘A simple breach of public procurement law is in itself sufficient to trigger the liability of the contracting authority … pursuant to Article 2(1)(c) of Directive 89/665/EEC’. In Fosen-Linjen II, the EFTA Court U-turned, adopted a unitary thesis and found that ‘Article 2(1)(c) of the Remedies Directive does not require that any breach of the rules governing public procurement in itself is sufficient to award damages’. This article provides an EU law perspective on the Fosen-Linjen saga by stating that Fosen-Linjen II represents the correct legal position, in particular in view of the minimum harmonisation carried out by the Remedies Directive. Thus, the EFTA Court was right to reverse its initial Judgment and to abandon the separation thesis. The article also submits that the CJEU would do well to (re)confirm the unitary thesis at the earliest opportunity, to avoid any perpetuation of this debate in the context of EU/EEA public procurement law.
|Number of pages||7|
|Journal||European Procurement and Public Private Partnership Law Review|
|Publication status||Published - 31 Dec 2019|
Bibliographical noteThe acceptance date for this record is provisional and based upon the month of publication for the article.
- Public procurement
- Public enforcement
- Private enforcement
- Simple breach
- Sufficiently serious breach
- State liability