A simple breach of public procurement law is in itself sufficient to trigger the Minimum harmonization liability of the contracting authority to compensate the person harmed for the damage incurred, pursuant to Article 2(1)(c) of the Remedies Directive, provided that the other conditions for the award of damages are met including, in particular, the existence of a causal link ( Fosen-Linjen, para 82, emphasis added).
I already discussed ( here ) the reasons
why I think the EFTA Court’s Judgment does not accord with Minimum harmonization the ECJ’s case law (notably in Spijker ) and why I job function email database hope the ECJ will explicitly correct this situation. In the remainder of this post, I briefly discuss the themes of minimum and maximum harmonization of procurement remedies that emerge from a comparison of pproaches adopted by the UK
The UK Supreme Court’s approach is implicitly based on a conceptualisation of the Remedies Directive as a minimum harmonization caseno email list instrument, which sets the basic elements of the (effective and equivalent) remedies that Member States must regulate for, in accordance with the peculiarities of their own domestic systems. I think that this characterization of the Remedies Directive is uncontroversial (see eg the recent report by the.
European Commission on its implementation at Member State level
At 4). Following the logic of minimu rmonization, the UK Supreme Court clearly has no problem with the existence of two seems to influence the entire text of the project! raising a series of doubts potential tiers of remedies: a lower or more basic EU tier (subject eg to a requirement of ‘sufficiently serious breach’), and a higher or more protective domestic tier (subject eg to ‘any infringement’), which may or may not exist depending on the policy orientation of each EU/EEA State.
This approach has both the advantage of being in accordance urrent state of the law as interpreted by the ECJ (as above), and of not imposing—as a matter of legal compliance, rather than policy preference—an absolute harmonization of public procurement remedies (at least as the threshold of liability for damages is concerned).
