The EFTA Court’s Fosen-Linjen Saga on the Liability Threshold for Damages Claims for Breach of EU Public Procurement Law: A There and Back Again Walk

Forthcoming in a special issue of the European Procurement & Public Private Partnership Law Review.

8 Pages Posted: 26 Sep 2019

Date Written: September 16, 2019

Abstract

The EFTA Court adopted two recent Judgments on the liability thresholds 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 aid 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.

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, The EFTA Court’s Fosen-Linjen Saga on the Liability Threshold for Damages Claims for Breach of EU Public Procurement Law: A There and Back Again Walk (September 16, 2019). Forthcoming in a special issue of the European Procurement & Public Private Partnership Law Review.. Available at SSRN: https://ssrn.com/abstract=3455213

Albert Sanchez-Graells (Contact Author)

University of Bristol - School of Law ( email )

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

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