Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/8.4.1.1:8.4.1.1 Sufficiently serious breach of a rule that confers a right on private parties

Remedies for infringements of EU law in legal relationships between private parties (LBF vol. 18) 2019/8.4.1.1

8.4.1.1 Sufficiently serious breach of a rule that confers a right on private parties

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408. The relevant rules of Union law in Laval, Mangold, Kücükdeveci, AMS, and Dominguez are all intended to confer a right upon the private party that brought the case. However, in cases in which a Member State has adopted legislation that is in conflict with Union law, or has preserved such legislation that has become incompatible with Union law, it is debatable whether the breach of that rule is sufficiently serious. In order for a breach to be sufficiently serious, the degree of discretion that Member States have in the implementation of a directive or the execution of other obligations stemming from Union law is relevant. The more freedom Member States have, the more difficult it becomes to construe a sufficiently serious breach.1 In such an event, it is required that a Member State has manifestly and gravely disregarded the limits of its rule-making powers.2

409. In relation to Laval, the Swedish legislation that allowed collective actions to be taken against foreign undertakings was clearly in conflict with the prohibition of discrimination on account of nationality in conjunction with the fundamental freedom to provide services.3 Instead of bringing a claim against the trade unions, Laval could have brought a claim against the Swedish State.4 In my view, the discriminatory Swedish legislation constitutes a sufficiently serious breach of Article 56 TFEU. The right to free provision of services and the prohibition of discrimination on account of nationality are clearly formulated. The Swedish legislation is the polar opposite of these fundamental Union rights and there is no indication that the Swedish legislature could successfully invoke a ground of justification for the restriction of Article 56 TFEU.5

410. In relation to the German legislation at stake in Mangold and Kücükdeveci, Articles 1 and 2 of Directive 2000/78 impose on Member States a clear and precise obligation to abandon any discrimination inter alia on the account of age in the realm of employment conditions. It is clear that the German provisions conflict with these obligations.6 However, Article 6 of the Directive provides for a degree of discretion.7 In view of the requirement that a breach must be sufficiently serious one could therefore argue that before the judgments in Mangold respectively Kücükdeveci it was unclear that the specific age discrimination in the regulation of fixed-term contracts, respectively the age discrimination in relation to the terms of notice were precluded by the Directive. Ironically, in fact Germany adopted the particular provisions in line with one of the objectives of Directive 2000/78, namely to support older workers in order to increase their participation in the labour force.8 In that respect, the adoption or preservation of the problematic German legislation cannot be considered to be a manifest and grave disregard of Germany’s rule-making powers. This conclusion excludes the possibility to hold the German State liable for the wrongful implementation of Directive 2000/78.9 On the other hand, I recall that, even before the rulings in Mangold and Kücükdeveci, it was stressed in German literature10 that the particular legislation was incompatible with Union law, which could or should have been a warning sign – not only for the German legislature, but in view of the judgments discussed in §4.2.3 also for employers that relied on the respective provisions.

411. In Dominguez and AMS the problematic French provisions were in conflict with the respective Directives which as regards the rule in question did not provide for much discretion. Also, the interpretation of the particular rule was already clarified by the Court of Justice at an earlier stage.11 In that respect it is likely that the criterion that the Member State’s breach of Union law is sufficiently serious is met in relation to these French provisions. In the wake of Dominguez the Cour de cassation even requested the French legislature to align the French law on days of paid leave with the Directive, so as to avoid future actions against the French State.12 Hence, although Directive 2003/88 leaves a wide margin of discretion to Member States13, the concrete circumstances of the case are likely to lead to the conclusion that there is a sufficiently serious breach. 14

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