You Can’t Be Serious: Critical Reflections on the Liability Threshold for Damages Claims for Breach of EU Public Procurement Law After the EFTA Court’s Fosen-Linjen Opinion

(2018) 1(1) Nordic Journal of European Law 1-23.

23 Pages Posted: 3 Mar 2018 Last revised: 11 Dec 2018

Date Written: February 24, 2018

Abstract

This paper offers some reflections on the position advanced by the EFTA Court that a simple breach of EU public procurement law is in itself sufficient to trigger the contracting authority's liability in damages (Fosen-Linjen). I argue that this position is flawed because it deviates from previous case law of the Court of Justice of the European Union (Spijker), and because it is based on interpretive errors and internal contradictions in the EFTA Court's reasoning. In criticising the EFTA Court's Judgment from the perspective of the harmonisation of EU law, I rely on the better view of the UK Supreme Court. The latter held that the liability of a contracting authority for the breach of EU public procurement rules under the remedies directive is assimilated to that of the State under the general EU law doctrine of State liability and thus requires a sufficiently serious breach (Nuclear Decommissioning Authority). My reflections are based on the need to keep procurement damages litigation constrained to its main function and limited to justified cases. I use this normative position to argue against the expansion of private enforcement of EU public procurement law as a correction of the shortcomings in its public enforcement.

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

Suggested Citation

Sanchez-Graells, Albert, You Can’t Be Serious: Critical Reflections on the Liability Threshold for Damages Claims for Breach of EU Public Procurement Law After the EFTA Court’s Fosen-Linjen Opinion (February 24, 2018). (2018) 1(1) Nordic Journal of European Law 1-23.. Available at SSRN: https://ssrn.com/abstract=3129430 or http://dx.doi.org/10.2139/ssrn.3129430

Albert Sanchez-Graells (Contact Author)

University of Bristol - School of Law ( email )

Wills Memorial Building
Queen's Road Clifton
Bristol, BS8 1RJ
United Kingdom

HOME PAGE: http://www.howtocrackanut.com/

Register to save articles to
your library

Register

Paper statistics

Downloads
213
rank
137,949
Abstract Views
757
PlumX Metrics