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Special Issue on the Legal Remedies and Implications from the Fosen-Linjen Case ∙ Procurement Damages in the UK and France – Why So Different?

Revisiting the Issue in Light of the Fosen-Linjen Saga

DOI https://doi.org/10.21552/epppl/2019/4/5

Roxana Vornicu


This article examines the criteria for the recovery of damages for illegal procurement decisions in the UK and France. The focal point of this analysis is the gravity threshold of the breach. There is a clear difference in approach in these two jurisdictions: whilst a simple breach of law is sufficient to trigger liability in France, in the UK, a 2017 Supreme Court ruling established that a sufficiently serious breach needs to be proven. This discrepancy has many explanations; inter alia the traditional Anglo-French disparity when it comes to general rules on liability of public bodies or the fact that the French legal culture is generally more contentious than the English. In this paper I reflect on these differences and analyse the conditions for triggering liability in each country. Finally, I make some reflections on how these differences of approach might impact the effectiveness of the remedy.
Keywords: Liability; Damages; Comparative law; Comparative administrative liability; Sufficiently serious breach; Simple breach; Causation; Effectiveness; Private enforcement; Public enforcement.

Roxana Vornicu, PhD (Eur), Postdoctoral Fellow at the University of Turin, Italy, Associated Researcher at the University Babes Bolyay, Centre for Good Governance Studies, Cluj Napoca, Romania and Member of the Bucharest Bar Association. This paper builds on a previous contribution: R Vornicu, ‘The sufficiently serious breach test in Action for Damages in Public Procurement Law and a tale of three courts: The CJEU, The UK Supreme Court and the EFTA Court’ (2019) 25(4) European Public Law Journal (forthcoming). I am grateful to Professor Albert Sanchez-Graells and Professor Roberto Caranta for their comments on the initial draft. For correspondence: <mailto:roxana.vornicu@univr.it>.

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