However! perhaps surprisingly! Spijker is not (yet) universally seen as having settled the issue of the interaction between the actions for damages under the Remedies Directive and the Francovich doctrine.
As mentioned 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 view that the general condition for there to be a ‘sufficiently serious breach’ of EU law under Francovich is relaxed by the Remedies Directive by solely mentioning the need for an (unqualified) 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.
Indeed! in its NDA Judgment (as per Lord Mance
With Lord Neuberger! Lady Hale! Lord Sumption The UK telegram data Supreme and Lord Carnwath agreeing)! the UK Supreme Court followed what I think is the correct reading of Spijker and established that
… para 87 [of Spijker] proceeds by making clear that the liability of an awarding authority is to be assessed 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 determined and estimated by national law! with the further caveat that the general inbound leads: understand the what! why! and how to see high-quality leads in your sales funnel increase principles of equivalence and effectiveness must also be met (para 91). Finally! para 92 summarizes what has gone before! repeating the need to satisfy the Francovich conditions ( NDA ! per Lord Mance! at [23]).
More importantly the UK Supreme Court considered
… there is … very clear authority of the Court of Justice confirming that the liability of a contracting authority under. The Remedies Directive for the breach of the [public procurement rules] is assimilated to that of the state or of a public body for betting email list which the state is responsible.
It is in particular only required to exist where the minimum Francovich conditions are met! 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 added).