Has the last word been spoken in the Fosen case?

On Thursday morning, the EFTA Court gave for the second time an advisory opinion on the Fosen Linjen case. The Supreme Court of Norway asked the EFTA Court for their view on whether “any violation of the rules on public procurement in itself is sufficient to provide a basis for liability as if the contract had been signed by the parties?”. The EFTA Court concludes that “Article 2 (1) © of the Enforcement Directive does not require that any breach of the rules on public procurement is in itself sufficient to award compensation for loss of profits to persons who have suffered damages as a result of a violation of EEA rules on public procurement”. Thus, any breach of the rules on public procurement is not enough.

The Court further states that “the requirement of sufficiently qualified breach as the minimum standard is considered sufficient to safeguard the rights of individuals”. This indicates that the terms which the Supreme Court stipulated in the Nucleus judgement still applies. However, it remains to be seen what the Supreme Court will conclude when the Fosen Linje case goes to court at the end of August.

Read the full opinion from the EFTA Court here:

2. August 2019

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