Skadestånd vid offentlig upphandling – särskilt om regelöverträdelsen som ansvarsgrund

Sammanfattning: A condition for the award of damages based on the Swedish Procurement Act (LOU) is that there has been a violation of public procurement law. In recent years, the closer meaning of this condition has been elaborated on in case law, both on the European level and within the Swedish legal system. The purpose of this thesis is to examine the ‘breach criteria’ in light of the conditions imposed by EU law and the evolvement of public procurement law in Sweden throughout the last century. In addition, a comparison is made with the threshold of infringement triggering a ground for the review and setting aside of procurement decisions. As to the question whether liability is conditional upon the degree of seriousness of the breach of LOU, the following conclusions are drawn. For the recognition of a right to damages, EU law requires that an infringement of EU public procurement rules is ‘sufficiently serious’. The clarity and precision of the rule infringed, and, by extension, the measure of discretion left by that rule to the national authorities, are the most important factors in evaluating whether a breach is sufficiently serious. By contrast, liability cannot be subjected to a requirement of fault. The Swedish Supreme Court has emulated this approach. As to the question whether a more serious breach of LOU is required to trigger liability than to trigger a ground for the setting aside of procurement decisions, there are a few points that speak in favour of such a proposition. Other than the fact that the ‘sufficiently serious breach criteria’ is not mentioned in the case law concerning the review procedure, the Swedish Supreme Court has explicitly stated that an independent assessment of the breach should be carried out in civil proceedings for damages. However, statements from the European Court of Justice and the EFTA court contending that the remedy of damages should function as a ‘procedural alternative’ to other remedies provided for in the Remedies Directive speak against the assertion that the ‘breach criteria’ differs significantly. Furthermore, the Swedish Supreme Court clearly relates the assessment of a breach in damages cases to the case law concerning the setting aside of procurement decisions. Thus, the state of law seems unclear, even if I believe it is safe to conclude that there is no great difference between the two procedures in this respect. A general trend in public procurement law is that societal interests are emphasised above the interests of individual tenderers. A limitation on tenderers’ ability to receive damages by requiring a ‘sufficiently serious breach’ fits well with this trend. At the same time, the impact of this condition should not be overstated, since there are greater obstacles for a damages claim to be successful, inter alia with regard to causality.