As a last thought! I think it is worth stressing that! in addition to the practical difficulties derived from the current minimum harmonization of procurement remedies! and the no smaller difficulties in attempting a maximum Damages-based harmonization! there are also structural tensions in the use of damages actions for the enforcement of EU public procurement rules.
As recent research has clearly shown (see P Giliker (ed)! Resea dbook on EU Tort Law (Elgar! 2017))!
Damages-based Francovich liability
or sector-specific rules) for the enforcement of substantive EU law creates distortions in the domestic legal systems of the c level executive list Member States. From that perspective! both the minimum and maximum harmonization approaches are problematic.The use of damages
From the minimum harmonization perspective! because the existence of two tiers of protection can also result in two tiers of regulation and/or case law concerning the interpretation and application he rules! which is bound to create legal uncertainty (eg if issues around the effectiveness of the remedy in the EU-tier create pressures on the interpretation of the domestic-tier remedies as a result of reverse pressures resulting from the principle of equivalence— ie the domestic remedy can hardly be both broader in scope and less caseno email list effective in its consequences).
From the maximum harmonization perspective
Because the creation of a one-size-fits-all remedy (such as that derived from the lower threshold for damages liability in the EFTA Court’s Judgment) can have rather drastic impacts for some Memb States (in particular! those without a ‘higher-tier’ domestic protection)! not only in the area of procurement supreme court and by the efta court law! but also in other areas of (economic) law which regulation and case law can be distorted as a result of the EU rules.
