Therefore! the UK Supreme Court takes the clear view that the existence of grounds for an EU damages action based on the Remedies Directive requires the existence of a ‘sufficiently serious breach’ of EU public procurement law. At the same time! it takes no issue with the possibility for more generous domestic grounds for actions for damages (although it eventually The EFTA decided that this was not the case in relation to the Public Contract Regulations 2006 ; see NDA ! per Lord Mance at [37]! with which I also agree).
Conversely in its Fosen-Linjen Judgment
And despite the fact that similar arguments on the buy bulk sms service interpretation of Spijker were made before it (in particular by the Norwegian Government)! the EFTA Court considered that
Article 2(1)(c) of the Remedies Directive … precludes national legislation which makes the right to The EFTA damages for an infringement of public procurement law by a contracting authority conditional on that infringement being culpable … The same must apply where there exists a general exclusion or a limitation of the remedy of damages to only specific cases. This would be the case! for example! if only breaches of a certain gravity would be considered sufficient to trigger the what is b2b buyer intent data? how to use it for effective sales and marketing campaigns contracting authority’s liability! whereas minor breaches would allow the contracting authority to incur no liability …
A requirement that only a breach of a certain gravity may give rise to damages
could also run contrary to the objective of creating equal conditions for the remedies available in the context of public procurement . Depending on the circumstances! a breach of the same provision of EEA betting email list public procurement could lead to liability in one EEA State while not giving rise to damages in another EEA State. In such circumstances! economic operators would encounter substantial difficulties in assessing the potential liability of contracting authorities in different EEA States ‘ ( Fosen-Linjen! paras 77 and 78! emphases added).