Einde inhoudsopgave
Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/8.4
8.4 Member State liability for legislation that is incompatible with Union law
mr. I.V. Aronstein, datum 01-09-2019
- Datum
01-09-2019
- Auteur
mr. I.V. Aronstein
- JCDI
JCDI:ADS141473:1
- Vakgebied(en)
EU-recht / Algemeen
Burgerlijk procesrecht / Algemeen
Voetnoten
Voetnoten
In Laval, Mangold, Kücükdeveci, AMS and Dominguez (and the related cases decided by the national courts) the law of the particular Member States showed substantive deficits with Union law. In Tests-Achats both the Directive and national implementation measures were held to be in conflict with Union law. As the European legislature was the one to blame here, it is excluded that Member States can be held liable for having implemented the particular Directive. Hence, this case will be left out of consideration in this section.
A fourth scenario relates to the failure of a Member State to comply with the Notification Directive, as a result of which the particular technical regulations have to be disapplied. Such a disapplication could lead to a private party suffering damages. Because the Notification Directive does not confer subjective rights to private parties, this scenario is not discussed in this study.
CJ 19 November 1991, Case C-6/90 (Francovich). CJ 5 March 1996, Joined Cases C‑‑46/93 and C‑‑48/93 (Brasserie du Pêcheur and Factortame III).
Think also of cases like Dominguez and Faccini Dori, para. 27. In the Netherlands this scenario is illustrated by a case on the wrongful implementation of the Working Time Directive: see the cases in footnote 225 (below).
Cf. Laval (§3.3.3 and §3.3.4.) and Kücükdeveci (§4.2.4 and §4.2.5).
See for example CJ 24 January 2012, Case C-282/10 (Dominguez), paras. 43, 44 and dictum. CJ 15 January 2014, Case C-176/12 (AMS), para. 50. CJ 7 August 2018, Case C-122/17 (Smith), para. 56. However, as AG Bot argues, it is preferable that a private party that has brought horizontal proceedings against another private party is effectively protected in those proceedings so that the disadvantages of having to bring a new action against the State can be avoided: Opinion Bot 7 July 2009, Case C-555/07 (Kücükdeveci), para. 69.
CJ 5 March 1996, Joined Cases C‑‑46/93 and C‑‑48/93 (Brasserie du Pêcheur and Factortame III), para. 66. CJ 25 November 2010, Case C-429/09 (Fuû II), paras. 65-66. See for a selection of national rulings on Member State liability Hartkamp, Sieburgh & Devroe (eds.), Casebook 2017, pp. 395-403.
The principle of Member State liability applies to all breaches of Union law, not only to the wrongful implementation of a directive. CJ 5 March 1996, Joined Cases C‑‑46/93 and C‑‑48/93 (Brasserie du Pêcheur and Factortame III).
CJ 14 March 2013, Case C-420/11 (Leth), para. 41 and paras. 45-47. CJ 25 November 2010, Case C-429/09 (Fuû II), para. 47.
Cf. CJ 14 March 2013, Case C-420/11 (Leth), para. 41 and paras. 45-47. CJ 25 November 2010, Case C-429/09 (Fuû II), para. 47. Case C‑‑568/08 (Combinatie Spijker Infrabouw-De Jonge Konstruktie), para. 87 and the case law cited. Cf. Sieburgh 2014b, p. 496. Betlem 1996. Jans, Prechal & Widdershoven 2015, pp. 451-460. Ebers 2016, pp. 150-194. For a recent ruling delivered by the Dutch Supreme Court in which a claim for State liability of the Dutch State for wrongful implementation of a directive was dismissed because the Schutznorm requirement was not met see HR 19 October 2018, ECLI:NL:HR:2018:1973.
Cf. CJ 8 October 1996, Joined Cases C-178/94, C-179/94, and C-188/94 to C-190/94 (Dillenkofer), para. 22.
CJ 19 June 2014, Joined Cases C-501/12 to C-506/12, C-540/12 and C-541/12 (Specht), paras. 98-108, especially para. 99, with reference to CJ 19 November 1991, Case C-6/90 (Francovich), para. 35; CJ 5 March 1996, Joined Cases C‑‑46/93 and C‑‑48/93 (Brasserie du Pêcheur and Factortame III), para. 31; and CJ 26 January 2010, Case C‑‑118/08 (Transportes Urbanos y Servicios Generales), para. 29-30. CJ 25 November 2010, Case C-429/09 (Fuû II), paras. 47 and 59. CJ 14 March 2013, Case C-420/11 (Leth), paras. 41 and 45-48.
It goes beyond the scope of the present study to elaborate upon the doctrine of Member State liability as such. Such an elaborate analysis is however provided by Sieburgh in Sieburgh 2014b. Condon & Van Leeuwen 2016.
Condon & Van Leeuwen 2016. Kapteyn 2008, p. 556. Prechal 2005, p. 274. See also Opinion Keus 27 March 2015, ECLI:NL:PHR:2015:356 to HR 18 September 2015, ECLI:NL:HR:2015:2722.
404. In most of the cases discussed in Part I, the legislation applicable to horizontal legal relationships was found to be in conflict with Union law.1 In relation to such cases, there are three scenarios in which the doctrine of Member State liability may become relevant.2 First, the party whose Union right is infringed may ab initio choose to bring an action for Member State liability on the basis of Francovich and Brasserie du Pêcheur.3 Second, in case the party whose Union right is infringed first brings an action against the opposite private party and the national court cannot bring solace to those horizontal proceedings, that party subsequently may wish to claim compensation for damages from the Member State, again on the basis of the Francovich doctrine.4 Lastly, a party successfully brings a claim for disapplication of national legislation that is substantively incompatible with Union law. The consequences of that disapplication may result in new obligations imposed on the opposite party, that as a result may have to make extra costs or suffer another type of damages.5 This party may wish to bring an action against the State to have those damages compensated.
405. It is not uncommon that the Court of Justice, in rulings relating to horizontal proceedings, reminds parties about the possibility to bring an action for Member State liability by stating that “the party injured as a result of domestic law not being in conformity with European Union law can nonetheless rely on the judgment in [Francovich] in order to obtain, if appropriate, compensation for the loss sustained” [Edited: I.A.].6 Save less demanding criteria for State liability in the laws of the Member States7, the criteria for Member State liability according to the Court of Justice’s case laware the following: first, there must be a sufficiently serious breach of a rule of Union law.8 Second, that rule of Union law must be intended to confer rights upon the private party bringing the claim,9 which means that the damages suffered by the claimant should fall within the scope of protection of the Union rule infringed – i.e. the rule infringed has to be a Schutznorm.10 The content of this right and its scope of protection should be sufficiently identifiable from the instrument in which the rule is adopted.11 Third, there must be a causal link between the sufficiently serious breach of the rule and the loss or damage sustained.12 Note that the latter basically covers two conditions: that there is damage and that there is a causality between that damage and the breach.
406. A number of bottlenecks exist around these conditions for Member State liability in the scenarios sketched. The next sections highlight the most salient bottlenecks in the cases discussed for the private parties wishing to hold the Member State liable for adopting or maintaining legislation incompatible with Union law.13 It is emphasized that a private party’s vain effort to bring a successful action on the basis of the Francovich criteria does not alter the fact that on the basis of the principles of effectiveness and equivalence the national criteria for State liability law should be applied when, on the basis of those criteria, liability is more easily established. It goes beyond the scope of this study to analyse the regimes of State liability in the laws of the Member States, which differ from one another.14
8.4.1 Scenarios 1 and 2: Liability for legislation with a substantive defect8.4.2 Scenario 3: Compensation for damages following from the disapplication of legislation with a substantive defect?8.4.3 Potential solutions: the protection of legitimate expectations or compensation for loss resulting from administrative acts?