7.3.1 An infringement of Union law as a tortious act

317. In Angonese the Italian courts held the Cassa di Risparmio liable to pay compensation for the loss of a chance suffered by Angonese. Although none of the Italian judgments clarify the ground for liability or its conditions, it is presumed that it concerns the liability for a tortious act.1 Article 2043 Codice civile stipulates that any fact or act, intentional or negligent, that causes unjust damage obliges the person who committed this fact to compensate the damages caused.2 The open norm (clausola generale) of Article 2043 Codice civile requires the balancing of the interests (valutazione) involved insofar as the legislation does not give solace to the character of an act. Franzoni 2010 (I), pp. 867-904.Barcellona 2011b, pp. 37-45. Cassano 2012, pp. 589-593.Barcellona 2011a, pp. 72-100. Galgano 2012, Articolo 2043, p. 2217. Initially, it was much harder to establish civil liability on the basis of Article 2043 Codice civile, especially in relation to the element of fault (colpa) and the requirement that a subjective right was infringed (lesione di un diritto soggettivo).3 However, by approaching Article 2043 Codice civile as a clausola generale the provision is granted a more “elastic character”4 that advances the broader protection against acts that are considered socially intolerable.5

The route to the establishment of liability is not explicitly incorporated in the judgments delivered by the Italian courts. It is likely that the fact that the Bank – without justification – infringed a norma imperativa in the eyes of the Italian courts sufficed not only for the conclusion that the requirement in the bando di concorso is null and void, but also for the conclusion that this is a tortious act resulting in the Bank’s liability on the basis of Article 2043 Codice civile.

318. In Dutch law, liability for a tortious act according to Article 6:162BW would be the most plausible ground for liability for an infringement of Article 45 TFEU.6 An infringement of Article 45 TFEU can escape unlawfulness if the infringing party can successfully invoke a ground of justification. From Dekker it follows that the grounds for exemption and grounds of justification in national law7 do not apply to infringements of the right to discrimination. Hence, only grounds of justification found in Union law can be invoked. This means that the answer to the questions whether or not an act infringes Article 45 TFEU and whether or not there is a ground of justification for that infringement are determined purely on the basis of Union law. That is, when a fundamental freedom with direct horizontal effect is restricted, the private party whose fundamental freedom is restricted can directly invoke that Treaty provision against the party who restricts the fundamental freedom. If the private party that restricts the fundamental freedom has no legitimate interest in doing so, the restriction is unlawful right away. If the latter party however does have a private interest which qualifies as a legitimate interest for the restriction of a fundamental freedom – e.g. a fundamental right entrenched in the Charter – the justification mechanism for restrictions of fundamental freedom must be applied. The justification mechanism for restrictions of fundamental freedoms consists of a proportionality test. In horizontal proceedings, the proportionality test requires the balancing of the interests involved – e.g. the fundamental freedom and the Charter provision. §8.3 discusses the justification regime for restrictions of fundamental freedoms by private parties. When the result of the balancing assessment is that the restriction is justified, the restriction is compatible with Union law. Unjustified infringements however by definition have an unlawful character. This conclusion cannot be altered by the application of rules on unlawfulness stipulated in national law.8

319. In Angonese the infringement by the Bank was not justified, by which the unlawfulness of the Bank’s behaviour was established.9 In the Dutch assessment for extra-contractual liability, the infringement of Article 45 TFEU subsequently falls within the scope of the second ground for unlawfulness: conflict with a statutory duty (strijd met een wettelijke plicht). The same can be argued in relation to other Treaty provisions with direct horizontal effect, such as Article 56 TFEU.

320. In Laval the trade unions invoked the fundamental right to collective action to justify the infringement of Article 56 TFEU. The Court held that, in principle, the right to collective action could justify an infringement of Article 56 TFEU, but that in this specific case the collective actions were disproportionate in relation to their objective.10 Under Dutch law, the assessment of whether an infringement of a fundamental right is justified by the exercise of another fundamental right would normally be incorporated in Article 6:162(2) BW: fundamental rights or other interests of equal value can be balanced against each other – as interests – in the context of the third ground for unlawfulness under Article 6:162BW (maatschappelijke betamelijkheid / zorgvuldigheidsnorm).11 The interest that serves the highest aim in the concrete circumstances of the case outweighs the other interest(s). This assessment equates to the balancing exercise carried out by the Court of Justice in Laval. However, strictly speaking, the balancing exercise under the third ground for unlawfulness – the duty of care (zorgvuldigheidsnorm) – is not likely to apply: looking at Laval,the balancing of rights and interests in the realm of the justification regime happens on the basis of Union law before the application of national law. Consequently, after it has been established on the basis of Union law that an infringement of Article 56 TFEU cannot be justified, the infringement falls within the scope of the second ground for unlawfulness under Article 6:162(2) BW – conflict with a provision of mandatory law (strijd met een wettelijke plicht) – because Article 56 TFEU has direct horizontal effect.

321. The application of the Italian and Dutch civil liability regimes to infringements of Articles 45 and 56 TFEU in principle seems to be compatible with the requirements of the right to a proportionate remedy. Civil liability that leads to the obligation to pay damages is an effective and appropriate remedy, which restores the patrimonial position of the party whose right was infringed. The particular amount of damages payable is decisive for whether or not the liability to pay damages is a proportionate remedy in the concrete circumstances.