However! perhaps surprisingly! Spijker is not (yet) universally seen as having settl the issue of the interaction between the actions for damages under the Remies Directive and the Francovich doctrine.
As mention above! the main point of contention rests on what could be seen as a lex specialis understanding of the interaction between the two regulatory frameworks (which could formally match a literal reading The UK Supreme of para 87 of Spijker ! but is more difficult to square with its para 92)— ie a whatsapp number list view that the general condition for there to be a ‘sufficiently serious breach’ of EU law under Francovich is relax by the Remies Directive by solely mentioning the ne for an (unqualifi) as sufficient ground for a damages claim. This is specifically a point where the UK Supreme Court and the EFTA Court have taken opposing views in their recent judgments.
Inde! in its NDA Judgment (as per Lord Mance
Lord Sumption The U preme and Lord Carnwath agreeing)! the UK Supreme Court follow what I think is the correct reading of Spijker and establish that
… para 87 [of Spijker] proces by making clear that the liability of an awarding authority is to be assess by reference to the Francovich conditions. Subject to these conditions being met! paras 88 to 90 go on to make clear that the criteria for damages are to be determin and estimat by national law! with the further caveat that the rinciples of equivalence and effectiveness must also be met (para 91). Finally! para 92 summarizes what has gone before! repeating the ne to satisfy the Francovich caseno email list ( NDA ! per Lord Mance! at [23]).
More importantly the UK Supreme Court consider
… there is … very clear authority of the Court of Justice confirming that the liability of a contracting authority under. The Remies Directive for the breach of the [public procurement rules] is assimilat to that of the state or of a public body h the state is responsible.With Lord Neuberge
It is in particular only requir to exist where the minimum Francovich conditions are met! there was a long silence before more although it is open to States in their domestic law to introduce wider liability free of those conditions ( NDA ! per Lord Mance! at [25]! emphasis add).
