However! this approach is not without some practical difficulties! as there is a thick mist of uncertainty concerning what is a sufficiently serious breach of procurement rules (but also of what rules in the EU directives are ‘ intended Maximum harmonization to confer rights ‘ on the tenderers— ie the first Francovich condition! which has been so far largely untested)! and the existing ECJ case law on the interpretation of substantive reconceptualisation in order to provide clarity in this respect.EU procurement rule
The existence of the preliminary reference mechanism of Art 267 TFEU
Can alleviate this legal Maximum harmonization uncertainty (in the long term! and perhap tarting soon with special lead the pending decision in Rudigier ! C-518/17 )! but not without creating a significant risk of collapse of the ECJ (or! at least! an even more significant growth in procurement-related preliminary references). From that perspective! the possibility to engage in maximum harmonization (as rather implicitly advocated by the EFTA Court) deserves some consideration.
In my view wrongly! the EFTA Court holds the implicit normative position that the Remedies Directive is an instrument of maximum harmonization caseno email list when it emphasizes its ‘ objective of creating equal conditions for the remedies available in the context of public procurement ‘ (see Fosen-Linjen ! para 78 above! emphasis added).
The EFTA Court derives this objective in an earlier passage
Where it stresses that a ‘ fundamental objective of the Remedies Directive is to create the framework conditions under the use of damages actions (either based on. which tenderers can seek remedies in the context of public procurement procedures! in a way that i s uniform as possible for all undertakings active on the internal market. Thereby! as is also apparent from the third and fourth recitals to the Remedies Directive! equal conditions shall be secured (sic)’ ( Fosen-Linjen ! para 66! emphasis added).
