Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.6.1:5.6.1 Restriction of the temporal effect of the ruling

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/5.6.1

5.6.1 Restriction of the temporal effect of the ruling

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256. In principle, when the Court of Justice declares an instrument of Union law to be invalid, that invalidity has retroactive effect.1 As noted before, the Court of Justice can restrict the temporal effect of a ruling concerning the interpretation or the invalidity of a provision of Union law in case of overriding considerations of legal certainty that justify such a restriction.2 The limited temporal effect of a ruling of the Court of Justice thus relates to the legal situations to which the ruling applies – i.e. whether or not it applies to legal relationships and legal situations existing prior to the date of the ruling. That is, does the invalidity of the act affect all legal relationships, or only a specific category and under which conditions? Pursuant to Article 264(2) TFEU the Court of Justice of the European Union can, in case it has declared an act – e.g. a directive – null and void, decide which of the effects of the particular act shall be considered as definitive.3 This provision applies by analogy also to preliminary rulings under Article 267 TFEU in which the Court has declared an act of an EU institution invalid.4

257. In principle, the invalidity of an instrument of Union law has retroactive effect. The Court of Justice can limit the temporal effect of invalidity only in exceptional cases in which overriding considerations of legal certainty justify the confinement of the retroactive effect of invalidity.5 Should the Court of Justice decide that a restriction of the retroactive effect of invalidity is justified, the next decision to be made by the Court is whether an exception to that restriction may be made in favour of the party that brought the action or in favour of any other party that took similar steps prior to the declaration of invalidity, or whether the restriction of retroactive effect constitutes an adequate remedy even for such parties.6

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