This article considers the problem of the right to damages in public procurement law in the light of the broader indications of the legal tradition of European countries, and the fact that such a right is an important element of any system of accountability of public bodies. The topic has come to prominence following the two recent Fosen-Linjen judgments of the EFTA Court. In particular, the framing of conditions for public liability have prompted debate. The paper argues that in regard to the specific rules of the Remedies Directives, in analytical terms, and in terms of coherence with the status of the right to damages as a fundamental right, Fosen-Linjen I’s departure from the sufficiently serious breach condition is a more adequate understanding of the law.
Keywords: Public Procurement; Remedies; Liability for damages; Right to damages; ‘Sufficiently Serious Breach’ condition; EU law – Fosen-Linjen EFTA Court.