3.2.5.3 The consequences of nullity

82. In case a national court concludes that the juridical act is null or partially null, the question arises what the concrete legal consequences of this nullity are. In Dutch law nullity has retroactive effect in the sense that the juridical act that is null is considered to have never existed at all. In consequence, obligations that have not been performed yet, lapse with retroactive effect and obligations already performed have to be made undone, for these performances have always lacked a juridical cause as a result of the nullity. Article 6:203et seq.BW provide for rules on undue payment and pre-eminently regulates situations in which parties have performed on the basis of a juridical act that is automatically null and void or annulled. The nullity of a juridical act entitles parties to the restitution of their performances. Depending on the nature of the obligation performed, the provision sets up a variety of duties of the recipient to undo the performance.1

83. In the case of Angonese, the nullity of the discriminatory clause in the bando di concorso which was in conflict with Article 45 TFEU results in the situation that the Bank could – in theory – not rely on the discriminatory clause to refuse applicants – like Angonese – to take part in the recruitment competition. However, in fact, by the time it was clear that the requirement was null and void, time had passed and the recruitment competition elapsed long since. Consequently, the nullity of the requirement does in this specific case not solve the dispute between Angonese and the Bank. It is unlikely that in this case the nullity of the discriminatory juridical act would constitute the effective judicial protection of Angonese’s rights. After all, Angonese cannot enter the recruitment competition anymore and does therefore not have the chance anymore that he would have had if he had not been excluded from the competition in the first place. The nullity of the discriminatory requirement is not totally pointless though: the demonstration by the Italian courts that a juridical act that is incompatible with Article 45 TFEU is null on the grounds stated2 is a showcase – at least for Italian law – that impacts other cases in which juridical acts are incompatible with Article 45 TFEU.

All the same, Angonese did not enjoy the consequences of nullity in this specific case. Therefore, the Italian courts, based on Angonese’s claim, assessed the applicability of grounds for civil liability of the Bank. Under Dutch law the same situation could occur, in which due to the lapse of time nullity of a juridical act does not bring solace to the party whose right has been infringed. The following section discusses the possibility to hold a private party liable for an infringement of Article 45 TFEU on the basis of Article 6:162BW on liability for tortious acts.