Special Issue on the Legal Remedies and Implications from the Fosen-Linjen Case ∙ Damages in EU Public Procurement Law:

Abstract

In the past the Court of Justice has sent contradictory signals on whether (a) the liability for breach of public procurement and concession rules is just one instance of the general doctrine of Member States liability for breach of EU law or, on the contrary, (b) it is regulated by special rules derived from the interpretation of Directive 89/665/EEC. The Fosen-Linjen saga shows that choosing one alternative over the other will generate very different outcomes in terms of liability. It is argued that relying on a fuzzy condition such as manifest and serious breach might end up leaving too much margin of choice to the national courts to the detriment of effective judicial protection and it is suggested that the matter is further addressed by the Court of Justice and possibly by the EU law-makers. Keywords: Remedies; Liability; Manifest and serious breach.