Revisiting the Fosen-Linjen Saga on threshold for procurement damages

I had the honour of being invited to contribute to a future publication to celebrate the EFTA Court’s 30th Anniversary in 2024. I was asked to revisit the Fosen-Linjen Saga on the EFTA Court’s interpretation of the threshold for liability in damages arising from breaches of EU/EEA procurement law.

The abstract of my chapter is as follows:

The 2017-2019 Fosen-Linjen Saga saw the EFTA Court issue diametrically opposed views on the threshold for damages liability arising from breaches of EEA/EU public procurement law. Despite the arguably clear position under EU law following the European Court of Justice’s 2010 Judgment in Spijker—ie that liability in damages under the Remedies Directive only arises when the breach is ‘sufficiently serious’—Fosen-Linjen I stated that a ‘simple breach of public procurement law is in itself sufficient to trigger the liability of the contracting authority’. Such an approach would have created divergence between EEA and EU procurement law and generated undesired effects on the administration of procurement procedures and excessive litigation. Moreover, Fosen-Linjen I showed significant internal and external inconsistencies, which rendered it an unsafe interpretation of the existing rules, tainted by judicial activism on the part of the EFTA Court under its then current composition. Taking the opportunity of a rare second referral, and under a different Court composition, Fosen-Linjen II U-turned and stated that the Remedies Directive ‘does not require that any breach of the rules governing public procurement in itself is sufficient to award damages’. This realigned EEA law with EU law in compliance with the uniform interpretation goal to foster legal homogeneity. This chapter revisits the Fosen-Linjen Saga and offers additional reflections on its implications, especially for a long-overdue review of the Remedies Directive.

The full chapter is available as: A Sanchez-Graells, ‘The Fosen-Linjen Saga: not so simple after all?’ in The EFTA Court and the EEA: 30 Years On (Oxford, Hart Publishing, forthcoming): https://ssrn.com/abstract=4388938.

EFTA Court reverses position on liability threshold for procurement damages (Fosen-Linjen II, E-7/18)

In its Judgment of 1 August 2019 in Fosen-Linjen AS, supported by Næringslivets Hovedorganisasjon (NHO) v AtB AS (E-7/18, Fosen-Linjen II), the EFTA Court has remarkably reversed its earlier position on the liability threshold for procurement damages claims, which it had previously established in its Judgment of 31 October 2017 in (E-16/16, Fosen-Linjen I ).

I had strongly criticised the original Fosen-Linjen I Judgment in this blog (here and here), at a seminar at the University of Bergen and, in extended detail, in A Sanchez-Graells, ‘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.

Therefore, I am truly glad to see this outcome of the Norwegian Supreme Court’s (creative) referral of the case to the EFTA Court for a second opinion.

It will be recalled that, in Fosen-Linjen I, the EFTA Court controversially found that

A simple breach of public procurement law is in itself sufficient to trigger the liability of the contracting authority to compensate the person harmed for the damage incurred, pursuant to Article 2(1)(c) of Directive 89/665/EEC, provided that the other conditions for the award of damages are met, including, in particular, the condition of a causal link (E-16/16, para 82).

In a 180-degree U-turn, in Fosen-Linjen II, the EFTA Court has now rather established 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 for the loss of profit to persons harmed by an infringement of EEA public procurement rules (E-7/18, para 121).

To be sure, this reversal is likely to generate further commentary (we are thinking of a special issue to collect some different views, so stay tuned) but my hot take is that with the Fosen-Linjen II Judgment, the EFTA Court has corrected the excesses of the earlier Fosen-Linjen I approach and (re)aligned EEA with EU law in the area of liability in damages for breaches of public procurement law.