The Fosen-Linjen Saga

The 2017-2019 Fosen-Linjen Saga saw the EFTA Court issue diametrically opposed views on the threshold for damages liability arising from breaches of EEA/EU public procurement law. Despite the arguably clear position under EU law following the European Court of Justice’s 2010 Judgment in Spijker—ie that liability in damages under the Remedies Directive only arises when the breach is ‘sufficiently serious’—Fosen-Linjen I stated that a ‘simple breach of public procurement law is in itself sufficient to trigger the liability of the contracting authority’. Such an approach would have created divergence between EEA and EU procurement law and generated undesired effects on the administration of procurement procedures and excessive litigation. Moreover, Fosen-Linjen I showed significant internal and external inconsistencies, which rendered it an unsafe interpretation of the existing rules, tainted by judicial activism on the part of the EFTA Court under its then current composition. Taking the opportunity of a rare second referral, and under a different Court composition, Fosen-Linjen II U-turned and stated that the Remedies Directive ‘does not require that any breach of the rules governing public procurement in itself is sufficient to award damages’. This realigned EEA law with EU law in compliance with the uniform interpretation goal to foster legal homogeneity. This chapter revisits the Fosen-Linjen Saga and offers additional reflections on its implications, especially for a long-overdue review of the Remedies Directive.