The Sufficiently Serious Breach Test in Action. Damages in Procurement Law and a Tale of Three Courts: the CJEU, the UK Supreme Court and the EFTA Court

Abstract

This article reflects on the conditions to trigger liability of contracting authorities for breach of public procurement rules and examines whether public procurement damages should be categorized as a particularization of the principle ofMember State liability or as a special remedy for breach of procurement rules. The article focuses on two controversial decisions, one rendered by the UK Supreme Court and the other by the EFTA Court which reached opposite conclusions as regards the nature of this remedy and the conditions to trigger liability, the controversy being whether the Francovich condition of a ‘sufficiently serious breach’ should be satisfied when triggering liability for illegal award decisions or not. The article reflects on the reasons that led to this opposing interpretation of the remedy of damages, describe theCourt of Justice of the European Union’s case law on damages and discuss why, in the procurement law arena, the ‘sufficiently serious breach’ was seen as incompatible with strict liability. After demonstrating that there is no such incompatibility, I argue that the lack of clarity regarding the conditions for making good procurement damages are not related to the subjective factor, but rather to the effectiveness benchmark for the remedy and its position within the architecture of the Remedies Directive. EU law, public procurement law, damages, Member States Liability comparative law, comparative public liability, sufficiently serious breach.