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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? journal article

Revisiting the Issue in Light of the Fosen-Linjen Saga

Roxana Vornicu

European Procurement & Public Private Partnership Law Review, Volume 14 (2019), Issue 4, Page 222 - 229

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.


The Rules on Performance of the Concession Contract under the 2014 Concession Directive and the Triangle of Rights: A Brief Dialectic journal article

Roxana Vornicu

European Procurement & Public Private Partnership Law Review, Volume 11 (2016), Issue 3, Page 159 - 165

This paper examines the post-award mechanisms for verifying the legality of concession contract performance, modification and/or termination as laid down under Directive 2014/23/EU. It begins by an attempt to understand whether, for the purpose of the directive, this should have been contemplated at all and then questions if the rules under the directive on performance of contract provide for effective and adequate tools to avoid abusive conduct from either the contracting authority/entity or the concessionaire, but also, whether these rules on performance of contract allow in any way for third parties to the contract to voice any breach of their own rights and interests. As far as the last research question is concerned, the starting point lies in the fact that, generally, long term concession contracts imply a shift of paradigm whereby, during the performance of the contract, the role of individuals towards the contracting entity/authority changes from one of citizens to one of consumers. This implies that the concessionaires become responsible for a service that affects the rights of members of the community greatly but also that such members of the community need to be given the legal remedies to voice the breaches of their rights, whether towards the concessionaires or the administration. The study tries to identify if such aspects have been contemplated at all in the European legal texts and if not, whether and how they should have been. At a first glance however, the rigidity of the Directive’s texts as regards concession modifications triggering the applicability of the award rules under the Directive, the procedural guarantees therein as well as the remedies stipulated under Directive 89/665/EC to any modification that might have an impact upon the contract seem to create a sufficient (if not excessive as it has been argued), remedial mechanism. Finally, the paper raises and tries to answer the question of how a fairly balanced mechanism of remedies would look like in the complex triangle of rights of the concessionaire, the contracting authority/entity, and citizens/consumers during the performance of a concession contract.


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