8.4.1 Scenarios 1 and 2: Liability for legislation with a substantive defect

407. A private party can bring a claim for compensation for damages against a Member State when national legislation is incompatible and cannot be consistently interpreted with Union law. In Laval, Mangold and Kücükdeveci the respective national legislation had to be disapplied as a result of its incompatibility with Union law. In such cases the disapplication of the problematic legislation resulted in the application of remaining legislation, which eventually brought solace to the context of the respective horizontal legal relationships. Yet, Mangold, Kücükdeveci and Laval could also have decided to bring an action for Member State liability ab initio (Scenario 1).

In Dominguez and AMS the national courts called upon in the horizontal proceedings could not bring solace to the party whose Union right was impinged upon by the respective French legislative provisions: the provisions were not open to consistent interpretation and the provisions of Union law with which they collided were not sufficient in themselves to confer a subjective right on a private party, meaning that the French provisions could not be set aside for being incompatible with a rule or general principle of Union law.1 In both cases the Court of Justice recalled that a party injured as a result of national law being incompatible with Union law could nonetheless rely on the judgment in Francovich “in order to obtain, if appropriate, compensation for the loss sustained”.2 In theory, after not having been successful in the horizontal proceedings, Dominguez could decide to bring an action against the French State. Also, in relation to the outcome in AMS the trade unions in that case, insofar as they have suffered recoverable damages, could decide to bring a claim for Member State liability for wrongful implementation (Scenario 2).