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 EU procurement rules would require significant reconceptualisation in order to provide clarity in this respect.
The existence of the preliminary reference mechanism of Art 267 TFEU
Can alleviate this legal Maximum harmonization uncertainty (in the long term! and perhaps b2b email list starting soon with 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 when it emphasizes its ‘ objective write a successful sales plan in seven steps (or use our free sales plan template) 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 which tenderers can seek remedies in the context of public procurement procedures! in a way that is betting email list as 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).