7.3.2 A Treaty provision as a ‘domestic’ ground for civil liability

322. In view of the reactions to its judgment, the Arbetsdomstolen’s conclusion that the trade unions were liable to pay damages directly on the basis of Article 56 TFEU1 came as an absolute bombshell.2 In Swedish law no explicit or general ground for liability for infringements of Article 56 TFEU was available.3 Nonetheless, on the basis of Union law the Arbetsdomstolen was obliged to find way for effective judicial protection of the directly horizontally effective Article 56 TFEU.4 Progressively as much as creatively the Arbetsdomstolen found its way to ‘baptising’ Article 56 TFEU as a ‘domestic’ ground for liability to pay damages.5 On this point the decision of the Arbetsdomstolen was not unanimous, as is clear from the dissenting opinions.6

323. Although the liability for the infringement of §42(1) Co-Determination Act7 would in principle have sufficed for Laval to receive damages, Laval also requested the liability for an infringement of Article 56 TFEU to be tried by the Arbetsdomstolen.8 Based on a clear set of arguments9, the Arbetsdomstolen created a new ground for liability to provide for a remedy when Article 56 TFEU is infringed by a private party.10 For liability for an infringement of a Treaty provision by a private party the Arbetsdomstolen applies the criteria for Member State liability11 and logically adds to those criteria that the provision infringed must have direct horizontal effect.12 From the Court of Justice’s judgment in Laval it is clear that Article 56 TFEU has direct horizontal effect. Further, the Arbetsdomstolen finds it “evident” that there is direct causality.13 Also, the Arbetsdomstolen concludes that the infringement is sufficiently serious, after a balancing of rights similar to the proportionality test carried out by the Court of Justice. In the context of that assessment the Arbetsdomstolen explicitly holds that in view of the concrete circumstances the collective actions at hand were not proportionate.14 In that respect, the liability of the trade unions as determined by the Arbetsdomstolen thus rests upon an idea of proportionality. Yet, from the Arbetsdomstolen’s judgment it cannot be derived that the ‘extra’ liability on the basis of Article 56 TFEU leads to an increased amount of damages payable.15 In that respect, the factual consequences of this additional liability for the trade unions remain fairly restricted.

As argued above, the liability to pay compensation can in principle be an effective and appropriate remedy for an infringement of Article 56 TFEU, as it helps to restore the patrimonial situation of the party whose right has wrongfully been infringed by another private party. In determining the remedy for the infringement of Article 56 TFEU, the Arbetsdomstolen strongly focuses on the effectiveness of that provision and even creates a new ground for liability in Swedish law to safeguard the effective judicial protection of Laval.16

In the concrete case of Laval and the trade unions, the ‘additional’ liability of the trade unions on the basis of Article 56 TFEU – next to liability on the basis of §42(1) Co-Determination Act – did not lead to a higher amount of damages payable to Laval. Yet, the Arbetsdomstolen’s invention of this new ground for liability may have implications for other Swedish cases in which Article 56 TFEU – or another Treaty provision with direct horizontal effect – is infringed and that fall outside the scope of other Swedish legislative provisions on liability (like the Co-Determination Act). For those cases, and in line with the principles of sincere cooperation, effectiveness and effective judicial protection, the Arbetsdomstolen seems to have provided for a new remedy in Swedish law.