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Special Issue on the Legal Remedies and Implications from the Fosen-Linjen Case ∙ The EFTA Court’s Fosen-Linjen Saga on Procurement Damages:

A There and Back Again Walk

DOI https://doi.org/10.21552/epppl/2019/4/8

Albert Sanchez-Graells


The EFTA Court adopted two recent Judgments on the liability threshold 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 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.

Albert Sanchez-Graells, Professor of Economic Law, University of Bristol Law School. This article builds on the previous discussion in the paper ‘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, which has been revised an updated in view of the Fosen-Linjen II Judgment of 1 August 2019. I am grateful to Roberto Caranta and Roxana Vornicu for their comments to an earlier draft. For correspondence: <mailto:a.sanchez-graells@bristol.ac.uk>.

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