Special Issue on the Legal Remedies and Implications from the Fosen-Linjen Case ∙ The Fosen-Linjen Saga ­– A Norwegian Perspective

• Published in: European procurement & public private partnership law review 2019-12, Vol.14 (4), p.230-240
• Main Author: Sørlie Lund, Dag
• Format: Article
• Language: English
• Subjects: Case law; Liability; Torts
• ISSN: 2194-7376; 2194-7384
• DOI: 10.21552/epppl/2019/4/6

This contribution seeks to analyse the Fosen-Linjen Saga from a Norwegian perspective. Under Norwegian law, the traditional standard for damages for the positive interest (lucrum cessans) for breaches of the public procurement rules required that the contracting authority had committed a material error, thus indicating a qualified threshold for liability. As for the negative interest (damnum emergens), the traditional standard has been less clear, but it was generally accepted that it was less strict than for the positive, and thus easier to obtain damages. With its judgment in Fosen-Linjen, the Norwegian Supreme Court rejected this differentiated threshold and established a common standard for liability for breaches of the public procurement rules for both heads of damages. The test now is whether the error constitutes a sufficiently serious breach. The article gives an outline of the Fosen-Linjen Saga, with a particular focus on the judgment of the Norwegian Supreme Court. Furthermore, an outline of the evolution of the Norwegian public procurement rules is given, to place the judgment in its proper legal-historical context. It is concluded that the new threshold means that it is harder to obtain damages for the negative contract interest than under the traditional test. As for the positive interest, the sliding scale for assessing whether a breach is sufficiently serious, with a focus on the discretion the rule in question may be considered to leave to the contracting authority, introduces a relative norm that in many cases may be stricter than the traditional approach, while less so in others. Keywords: Liability; Public procurement; Damages; Norwegian Supreme Court; Fosen-Linjen; EFTA Court.