Liability Threshold for Damages in Public Procurement: The EFTA Court’s Fosen-Linjen Saga

Abstract

In this case comment, I explore the two EFTA Court Judgments in the Fosen-Linjen saga and their opposing views on the interaction between EU/EEA rules on procurement remedies and the more general principle of State liability for breaches of EU/EEA law. I review the case law of the Court of Justice of the European Union and, in particular, the perceived inconsistencies between the two 2010 Judgments in Strabag and Spijker, which featured very prominently in the legal arguments submitted to the EFTA Court in both Fosen-Linjen cases. I also use the benchmark of the UK Supreme Court's Nuclear Decommissioning Authority Judgment to support the view that Spijker reflects the correct understanding of EU/EEA law and that there should be no further debate about it. I submit that the Court of Justice of the European Union would be well-advised to (re)confirm the position enshrined in Spijker at the earliest opportunity, to avoid any perpetuation of this debate in the context of EU/EEA public procurement law.

Keywords: Public procurement, liability, damages, State liability, sufficiently serious breach, simple breach, causation, effectiveness, private enforcement, public enforcement

JEL Classification: H57, K13, K23, K41, K42