8.5.1 Civil remedies or State liability: what’s the difference?

423. The preceding section shows that on the basis of the criteria for Member State liability according to Union law, only Laval and (perhaps) Dominguez would have had a fair chance to hold the relevant Member State liable for the damage resulting from the application of the legislative provision that was in conflict Union law. Save the possibility that the State liability regimes in the Germany and France, respectively, would have criteria on the basis of which State liability would have been more easily established, Mangold, Kücükdeveci, and the Union locale des syndicats CGT would have seen their claim for State liability fail. Against this background, it is observed that it is remarkable that the failure of a Member State to comply with obligations stemming from Union law in some cases cannot be held against the Member State itself1, but can be held against private parties that relied on the applicability of the problematic legislation in good faith and are subsequently confronted with new obligations.2

424. The liability of Member States for infringements of Union law is assessed either on the basis of the criteria formulated in the Court of Justice’s case law, or on the basis of less demanding, more victim-friendly criteria of State liability in law of national origin. The liability of private parties for infringements of Union law is assessed on the basis of national civil liability law, which has to be applied in correspondence with the principles of effectiveness and equivalence. In respect of the possibility to hold a private party liable for an infringement of directly horizontally effective Union law, the Arbetsdomstolen explicitly deliberates that in relation to infringements of such provisions of Union law “it could be seen as odd to make a distinction between damage claims depending upon whether the violator is a part of the state or happens to be independent of the state”.3 Hence, in relation to violations of, for instance, Article 56 TFEU the Swedish court places private parties and Member States on the same footing and applies the criteria for Member State liability to the trade unions.4 The criterion that the infringement should be sufficiently serious calls for special attention in the context of civil liability.5 The approach taken by the Arbetsdomstolen, which is in line with Van Gerven’s Opinion in Banks6, implies that it would not be acceptable if different criteria would apply to similar infringements of Union law depending on the character of the infringing party. Along the same line of argument, one could argue that it is not desirable that the civil liability of a private party would be subject to less demanding criteria than those for Member State liability.7 This approach is not adopted by everyone.8

425. In my view, the distinction between the obligations that Union law imposes on Member States and the duties it imposes on private parties should be emphasised. The rationale of the criterion in the context of Member State liability that a breach of Union law must be sufficiently serious is that given the national autonomy of Member States and the fluctuating degree of latitude it is undesirable that each simple breach of Union law leads to Member State liability. The lower the degree of discretion a Member State enjoys in complying with its obligations under Union law, the sooner it will be held liable for a breach of that obligation – i.e. the less weighty the criterion that the breach is sufficiently serious becomes. However, if we look at the duties that Union law directly imposes on private parties we must conclude that they are of a very different nature: those obligations do not allow for discretion at all. Consequently, it does not make sense to make civil liability for an infringement of a right stemming from Union law subject to the criterion that this infringement is sufficiently serious.9 In addition, as regards the interests of the infringing private party it is noted that they are usually taken into consideration in the determination of whether or not there has been an infringement at all. This concerns a balancing of interests which is however not in any way related to any degree of discretion that the rule of Union law leaves the private party.

426. On the other hand, if we look at the cases Mangold, Kücükdeveci and Dansk Industri we see that private parties are confronted with new obligations, which basically trace back to the failure of the Member State to comply with Union law. It is somewhat strange that in those cases, for the sake of effectiveness of Union law, the private party that relied upon problematic legislation can be confronted with new obligations and that in such cases it is very unlikely that the Member State itself cannot be held liable because the breach was not sufficiently serious10 or because of the Schutznorm requirement.11 In that respect and from the perspective of reasonableness, the outcomes in those cases leave us with a bad taste in the mouth. Considering the variety of State liability regimes in the Member States12 and considering that these situations concern the failure of a Member State to comply with Union law, it may be desirable that the consequences of such failures are in one way or another streamlined at Union level to ensure protection for private parties that suffer damages resulting from a Member State’s failure to comply with Union law but which failure currently cannot meet the conditions for State liability. Another option would be to revisit (European and national) rules governing the offsetting of the disadvantages or compensation for loss resulting from administrative acts (nadeelcompensatie; Nachteilsausgleich) on the basis of the principe d’égalité or the principle of proportionality.13 Eventual rules on this matter at Union level would not alter the fact that on the basis of the principle of equivalence national regimes apply insofar as they are more victim-friendly.