3.3.4.3 From liability to compensation for damages: how?

116. As regards the obligation to pay damages and the calculation of the damages, Union law gives no guidance. Therefore, national courts should apply provisions of national origin. Given the diverse nature of the two grounds for liability the Arbetsdomstolen has to walk two paths to determine the concrete amount of damages payable.

In relation to the liability based on §42(1) Co-Determination Act, the Arbetsdomstolen states that the provisions regulating damages in the Co-Determination Act are directly applicable to the case.1 First, §54 Co-Determination Act states that damages have to be paid by a party that is liable on the basis of the Act. The provision allows for compensation for both pecuniary and non-pecuniary damages. Then, §55 of the Act regulates the calculation of the amount of the damages payable, thereby taking into consideration the specific circumstances of the case. Pursuant to §60 of the Act courts can mitigate or entirely annul the amount of damages on the basis of specific circumstances of a case and the interests involved. Finally, §61 of the Act regulates the fair distribution of the damages between a group of parties that have been held liable to pay damages for the harm they caused together.2

117. In relation to the liability based on Article 56 TFEU, however, the Arbetsdomstolen had to take a different path, ultimately arriving at the same destination: the damages regulations in the Co-Determination Act.3 The Arbetsdomstolen states that these provisions, however, “are not directly applicable, as in the present case it is a question of a violation of the TFEU that is the basis for the right to damages. The issue is whether the regulations can be applied analogously”.4 The Arbetsdomstolen considers, in the same vein as Marshall I5, that the damages regulations in the Co-Determination Act can be analogously applied to the issue of pecuniary damages. The same applies with regard to the punitive damages, be it that in that context the Arbetsdomstolen refers to the cases of AGM COS.MET6, Brasserie du Pêcheur and Factortame III7 and Manfredi8. In AGM COS.MET the Court of Justice held that “[i]t should be observed that the purpose of a Member State’s liability under Community law is not deterrence or punishment but compensation for the damage suffered by individuals as a result of breaches of Community law by Member States”.9 The Arbetsdomstolen states that there is significant support for applying the Co-Determination Act’s provisions as to punitive damages analogously to this case and that “such support can be found primarily in the principles of equivalence and the effectiveness in EU law”.10 The Arbetsdomstolen notes:

118. After its considerations on the applicable damages regulations, the Arbetsdomstolen turns to the question whether the application of these regulations results in the trade unions’ obligation to compensate the harm suffered by Laval. The Arbetsdomstolen states that it seems obvious that Laval has suffered pecuniary damages. However, Laval has failed to prove that it has suffered harm to the extent claimed, and to deliver evidence that it was difficult to demonstrate the pecuniary damages suffered.13 As a consequence, the pecuniary damages (ekonomisk skadestånd) cannot be awarded. Yet, the punitive damages (allmänt skadestånd) are awarded up to an amount of approximately €60.000 plus interest14 in total.15 These amounts are considerably less than the amounts claimed by Laval. The Arbetsdomstolen gives no reasoning whatsoever as to why and how it arrives at these amounts.