3.3.4 Close-up: the tools and tricks used by the national court

110. Given the Court of Justice’s ruling, the Arbetsdomstolen did not have to thoroughly assess the lawfulness of the collective actions anymore.1 However, touching on the heart of this study, Union law does not autonomously regulate the consequences of the infringement of Article 56 TFEU: this is where law of national origin comes into play. The Arbetsdomstolen had the duty to interweave the infringement of Article 56 TFEU with liability regulations at the national level in order to determine the legal consequences of the infringement.2

111. In this case, the Arbetsdomstolen revealed straight away that “there are no explicit Swedish statutory provisions that, even after interpretation consistent with the treaties, give [Laval] a right to damages from the organisations based on a violation of the treaties caused by the collective actions, and neither is there support for such a right to damages in the Swedish case law regarding domestic law. Damage liability for the trade unions must therefore be solely based on that following from EC law”.3

Against this background, the Arbetsdomstolen provides us with a survey on Member State liability law.4 Firstly, it connects the principle of sincere cooperation, the principle of effectiveness, and Member State liability under European Union law.5 Secondly, the case law on EU liability for infringement of Treaty provisions6 is reproduced in a nutshell. A case smartly quoted by the Arbetsdomstolen is the Raccanelli case, in which the Court of Justice stated, in relation to what is now Article 45 TFEU, that this provision nor regulations concretising it prescribe specific measures to be taken by the Member States or private organisations in the event of a breach of the prohibition of discrimination, “but leaves them free to choose between the different solutions suitable for achieving the objective of those respective provisions, depending on the different situations which may arise”.7 The Court of Justice continues that given this freedom, “in the event that the applicant in the main proceedings is justified in relying on damage caused by the discrimination to which he has been subject, it is for the referring court to assess, in the light of the national legislation applicable in relation to non-contractual liability, the nature of the compensation which he would be entitled to claim”.8 This conclusion is likely to apply just the same to infringements of most other Treaty provisions. In the Swedish laws on liability, the Arbetsdomstolen did not find a provision it could apply. Therefore, the Arbetsdomstolen called to mind the framework of liabilities under Union law and applied the element of these liabilities to the horizontal situation at hand in order to assess whether or not the trade unions could be held liable for an infringement of Article 56 TFEU.