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Special Issue on the Legal Remedies and Implications from the Fosen-Linjen Case ∙ The Fosen-Linjen Saga ­– A Norwegian Perspective

DOI https://doi.org/10.21552/epppl/2019/4/6

Dag Sørlie Lund


This contribution seeks to analyse the Fosen-Linjen Saga from a Norwegian perspective. Under Norwegian law, the traditional standard for damages for the positive interest (lucrum cessans) for breaches of the public procurement rules required that the contracting authority had committed a material error, thus indicating a qualified threshold for liability. As for the negative interest (damnum emergens), the traditional standard has been less clear, but it was generally accepted that it was less strict than for the positive, and thus easier to obtain damages. With its judgment in Fosen-Linjen, the Norwegian Supreme Court rejected this differentiated threshold and established a common standard for liability for breaches of the public procurement rules for both heads of damages. The test now is whether the error constitutes a sufficiently serious breach. The article gives an outline of the Fosen-Linjen Saga, with a particular focus on the judgment of the Norwegian Supreme Court. Furthermore, an outline of the evolution of the Norwegian public procurement rules is given, to place the judgment in its proper legal-historical context. It is concluded that the new threshold means that it is harder to obtain damages for the negative contract interest than under the traditional test. As for the positive interest, the sliding scale for assessing whether a breach is sufficiently serious, with a focus on the discretion the rule in question may be considered to leave to the contracting authority, introduces a relative norm that in many cases may be stricter than the traditional approach, while less so in others.
Keywords: Liability; Public procurement; Damages; Norwegian Supreme Court; Fosen-Linjen; EFTA Court.

Dag Sørlie Lund is a Senior Attorney, Hjort Law Firm, Oslo, Norway. This article is partly based on a presentation given at Bergen Center for Competition Law and Economics, 1 March 2018, titled ‘Norwegian law and practice on damages arising from public procurement breaches before Case E-16/16 Fosen Linjen v ATB AS. Comments from a sore loser’. For the sake of good order, it should be mentioned that I was one of the agents pleading for Norway in the first Fosen-Linjen case, hence the subtitle of my speech in Bergen. Thanks to Ignacio Herrera Anchustegui, who organized that event, and to my fellow speakers, Kirsi-Maria Halonen, Albert Sanchez-Graells and Halvard Haukeland Fredriksen for comments and discussions on Fosen-Linjen I. Thanks also to Erlend M. Leonhardsen for reading and commenting on drafts to this article. The views (and mistakes) in this article are my own. For correspondence: <mailto:dalun@hjort.no>.

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