EFTA Court contradicts UK Supreme Court on public procurement damages test

02 Nov 2017

The EFTA Court, the equivalent of the CJEU for the non-EU countries within the European Economic Area, has handed down a judgment in Case E-16/16 Fosen-Linjen AS v AtB AS, holding that a simple breach of public procurement law may in itself be sufficient to trigger the damages liability of a contracting authority. Provisions of EEA public procurement law are identical to those within the EU and hence the UK.

This ruling puts the EFTA Court at variance with our own Supreme Court and its finding that a “sufficiently serious breach” is required to trigger the liability of a contracting authority in such circumstances in EnergySolutions v NDA.

The EFTA Court judgment is of particular interest while an EEA-type solution, including the EFTA Court’s jurisdiction, remains on the table as a possible transitional or even permanent outcome in Brexit negotiations.

A link to the Monckton summary and case note on EnergySolutions case may be found here.