3.3.4.1 A first ground for liability: Article 56 TFEU

112. Despite the fact that both parties to the conflict had requested the Swedish court to refer new preliminary questions – this time concerning the potential liability of the trade unions in relation to their infringement of Article 56 TFEU – the Arbetsdomstolen decides to make its own appraisal. In order to answer the question of whether an infringement of the Treaty by a private party vis-à-vis another private party can lead to liability to pay damages, the Arbetsdomstolen phrases a series of questions that serve as prerequisites of the imposition of liability to pay damages: 1) Does Article 56 TFEU have direct horizontal effect so that it can serve as a ground for liability?; 2) Should the remedy for a violation of Article 56 TFEU be the compensation for damages?; and 3) Which liability rules are applicable to liability for a violation of Article 56 TFEU?

113. As concerns the first question, the Arbetsdomstolen compares the French, German, Swedish, English, and Danish versions of the Court of Justice’s ruling and concludes that, indeed, not only the regulatory or norm-giving operations of trade unions are encompassed by Union law, but also their concrete actions. Thus, concludes the Arbetsdomstolen, Article 56 TFEU imposes rights and obligations upon private parties and can be invoked as such. Consequently, the trade unions are liable for having violated Laval’s right to provide services in Sweden.1

Subsequently, the Arbetsdomstolen connects the principle of sincere cooperation, the principle of effectiveness and the Court of Justice’s judgment in Raccanelli.2 The Arbetsdomstolen acknowledges that Raccanelli does not concern Article 56 TFEU. Nevertheless, taking that ruling as a source of inspiration, the Arbetsdomstolen holds that “there is a general principle within [EU] law that damages are also to be able to be awarded between private parties upon a violation of a treaty provision that has horizontal direct effect”, not only in the realm of competition law, but also with respect to violations of other Treaty provisions.3

114. According to the Arbetsdomstolen, the trade unions should be equated with Member States when it comes to the assessment of their liability to pay damages for infringements of Union law. The equation is based on the legal autonomy, authority and societal interests of the trade unions. Or as the Arbetsdomstolen puts it: “it can be seen as odd to make a distinction”.4 In other words, the trade union’s liability for damages should be established on the basis of the three criteria for State liability. That is, 1) the rule violated intended to create rights for private parties; 2) the violation is sufficiently serious5; and 3) there is a direct causal link between the violation and the damage suffered by the private party.6 The Arbetsdomstolen analogously applies these criteria to the case at hand. Brief and to the point the court ticks off the first and the third criterion: Article 56 TFEU confers rights upon private parties and has direct horizontal effect, and there is causality between the violation and the harm suffered by Laval.7 With regard to the second criterion, the Arbetsdomstolen is of the opinion that the collective actions at issue constitute serious violations of Article 56 TFEU, a “fundamental principle in the Treaty”. The Arbetsdomstolen proceeds by giving insight into its balancing process by stating:

In conclusion, the Arbetsdomstolen takes the principle of sincere cooperation and the principle of effectiveness as a point of departure, and arrives, via the analogous application of the criteria for Member State liability, to the conclusion that the trade unions are liable to pay damages on the basis of Article 56 TFEU. Another outcome would, according to the Arbetsdomstolen, jeopardise the effet utile of Union law.