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Published online by Cambridge University Press: 27 October 2017
The emergence of private party liability in damages is EU law has been much discussed by academics, but it is clear from the case law of the Court of Justice that we do not yet have a principle of private party liability analogous to the principle of Member State liability. This chapter examines under what conditions it would be justified to claim that there was indeed a general principle of private party liability in EU law. Furthermore, the chapter explains that the introduction of the general principle of private party liability would require a thorough clarification of some of the most fundamental, yet still unclear, concepts of EU law, such as direct effect, the horizontal applicability of EU norms and the principle of effective judicial protection. It is argued that the jurisdiction of the Court of Justice to introduce a general regime of private party liability in damages is not without controversy and that the judicial creation of the principle will be legitimate only if adequate normative justification is provided for its presence in EU law. In this respect, it has to be recognised that EU competition law is not an adequate legal setting for the general regime to be born, because it does not bring to light tensions arising in other contexts.
1 Case C-453/99 Courage v Crehan [2001] ECR I-6297 (‘Courage’).
2 Joined Cases C-255 and 298/04 Manfredi [2006] ECR I-6619 (‘Manfredi’).
3 Case 6 & 9/90 Francovich [1991] ECR 5357 (‘Francovich’).
4 van Dam, C, European Tort Law (Oxford, Oxford University Press, 2007) 205–206 CrossRefGoogle Scholar; Dougan, M, ‘Enforcing the Single Market: The Judicial Harmonisation of National Remedies and Procedural Rules’ in Barnard, C and Scott, J (eds), The Law of the Single European Market: Unpacking the Premises (Oxford, Hart Publishing, 2002) 153, 176Google Scholar; Drake, S, ‘Twenty years after Von Colson: the impact of “indirect effect” on the protection of the individual’s Community rights’ (2005) 30 EL Rev 329, 344Google Scholar and ‘Scope of Courage and the principle of “individual liability” for damages: further development of the principle of effective judicial protection by the Court of Justice’ (2006) 31 EL Rev 841; Komninos, AP, ‘Civil Antitrust Remedies Between Community and National law’ in Barnard, C and Odudu, O, The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 363, 382Google Scholar.
5 G Betlem, ‘Torts, A European Ius Commune and the Private Enforcement of Community Law’ [2005] CLJ 126, 141.
6 van Gerven, W, ‘The Emergence of a Common European Law in the Area of Tort Law: The EU Contribution’ in Fairgrieve, D, Andenas, M and Bell, J (eds), Tort Liability of Public Authorities in Comparative Perspective (London, BIICL, 2002), 125, 141Google Scholar; F Marcos and A Sanchez Graells, ‘Towards European Tort Law? Damages Actions for Breach of the EC Antitrust Rules: Harmonizing Tort Law through the Back Door?’ [2008] European Review of Private Law 469, 472.
7 A Albors-Llorens, ‘Courage v Crehan: judicial activism or consistent approach?’ [2002] CLJ 38, 40; Edelman, J and Odudu, O, ‘Compensatory damages for breach of Article 81’ (2002) 27 EL Rev 327, 335Google Scholar.
8 Case 222/84 Johnston [1986] ECR 1651; Case 222/86 Heylens [1987] ECR 4097; Joined Cases C-87/90, C-88/90 and C-89/90 Verholen [1991] ECR I-3757; and see Art 19 TEU.
9 Case C-13/01 Safalero [2003] ECR I-8679, [54]–[55]. A-G Sharpston in Case C-584/08 Unibet [2007] ECR I-02271, para 35: ‘[I]n certain circumstances Community law may require a new remedy where that is the only way to ensure that a Community law right can be protected. In Heylens, for example, the Court stated that, since free access to employment is a fundamental right which the Treaty confers individually on each worker in the Community, “the existence of a remedy of a judicial nature against any decision of a national authority refusing the benefit of that right is essential in order to secure for the individual effective protection for his right”. Similarly in Vlassopoulou the Court stated that “any decision [on recognition of professional diplomas] taken must be capable of being made the subject of judicial proceedings in which its legality under Community law can be reviewed”.’
10 Courage, para 26; Manfredi, para 60.
11 Courage, para 27.
12 In Courage, para 27, the Court held that the right to damages makes ‘a significant con tribution to the maintenance of the effective competition in the Community’.
13 Ibid, para 20.
14 Cases C-46 and 48/03 Brasserie du Pêcheur [1996] ECR I-1029 (‘Brasserie du Pêcheur’).
15 See, eg, Craig, PP, ‘Once More unto the Breach: the Community, the State and Damages Liability’ (1997) 113 LQR 67 Google Scholar; Eilmansberger, T, ‘The Relationship between Rights and Remedies in EC Law: In Search of the Missing Link’ (2004) 41 CML Rev 1199, 1223Google Scholar; Harlow, C, ‘A Common European Law of Remedies?’ in Kilpatrick, C, Novitz, T and Skidmore, P (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 69, 80Google Scholar; Tridimas, T, ‘Liability for Breach of Community Law: Growing Up and Mellowing Down?’ in Fairgrieve, D, Andenas, M and Bell, J, Tort Liability of Public Authorities in Comparative Perspective (London, BIICL, 2002) 149, 150Google Scholar.
16 Francovich, paras 35 and 37 (emphasis added).
17 Francovich; Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer [1996] ECR I-4845 (‘Dillenkofer’).
18 Case C-224/01 Köbler [2003] ECR I-10239 (‘Köbler’), para 118. Given the factual circumstances of the case, the breach of the aforementioned norm was not considered ‘serious’ (ibid, para 123).
19 Case C-173/03 Traghetti [2006] ECR I-5177, para 35.
20 Brasserie du Pêcheur, paras 22 and 54 (in the latter paragraph the Court of Justice distinguishes the right to rely on a Community provision from the right ‘directly conferred by a Community provision’; only the latter gives an individual a right to claim compensation); Köbler, paras 101–03.
21 In Köbler the norm breached was a judicial duty to refer and maintain a request for a preliminary ruling under Art 234 EC (now Art 267 TFEU) in situation where a national court was not entitled to take the view that resolution of the point of law at issue was clear from the settled case law of the Court or left no room for any reasonable doubt: Köbler, para 118. The norm which vested rights in the applicant was that guaranteeing workers free movement within the Community. In Francovich and Dillenkofer the norm which the Member State breached was the duty to implement the directive, which stems from Arts 10 and 249 EC (now Art 4 TEU and Art 288 TFEU). It was the directive in question which granted rights to individuals.
22 The Court of Justice of course explains (and masks) its law-making activity by referring the principles it creates back to the system of the Treaty. See Hartley, T, European Community Law, 6th edn (Oxford, Oxford University Press, 2007) 131–32Google Scholar. See also Case C-292/04 Wienand Meilicke [2007] ECR I-1835, para 34, where the Court of Justice describes its Art 234 EC case law as ‘interpretation’, which merely ‘clarifies and defines the meaning and scope of [a Treaty] rule as it must be or ought to have been understood and applied from the time of its entry into force’.
23 The relationship between the general remedy and the more specific remedies may be regulated in different manners. Damages could in principle be available only if recourse had first been had to other remedies and, because of the Member State’s resistance, proved ineffective, or if other remedies in a given context do not ensure effective judicial protection.
24 Case C-334/92 Wagner Miret [1993] ECR I-6911, paras 17–22. Anagnostaras, G, ‘State Liability and Alternative Courses of Action: How Independent Can an Autonomous Remedy Be?’ (2001–2002) 21 YEL 355, 362Google Scholar; Weatherill, S, ‘Addressing Problems of Imbalanced Implementation in EC Law: Remedies in an Institutional Perspective’ in Kilpatrick, C, Novitz, T and Skidmore, P (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 87, 100Google Scholar.
25 Case C-445/05 Danske Slagterier [2007] ECR I-4841; Joined Cases C-397/98 and C-410/98 Metallgesellschaft [2001] ECR I-1727.
26 Case C-445/05 Danske Slagterier [2007] ECR I-4841, paras 60 and 62.
27 Joined Cases C-397/98 and C-410/98 Metallgesellschaft [2001] ECR I-1727, para 106.
28 Cases 106/77 Simmenthal [1978] ECR 629, para 22; C-231/89 Factortame [1990] ECR I-2433, para 20; and C-442/00 Caballero [2002] ECR I-11915, para 43. See Dougan, M, ‘When Worlds Collide! Competing Visions of the Relationship between Direct Effect and Supremacy’ (2007) 44 CML Rev 931, 933 and 950Google Scholar.
29 Case 26/62 Van Gend en Loos [1963] ECR 1; Case 41/74 Van Duyn [1974] ECR 1337, para 12. More recently, see Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483, paras 60–68.
30 Case 14/83 Von Colson [1984] ECR 1891, para 26; Case C-106/89 Marleasing [1990] ECR I-4135, para 8; Joined Cases C-397 to 403/01 Bernhard Pfeiffer [2004] I-8835, para 113.
31 Case 199/82 San Giorgio [1983] ECR 3595, para 12: ‘[E]ntitlement to the repayment of charges levied by a Member State contrary to the rules of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of internal taxes’; Joined Cases C-192/95 to C-218/95 Comateb [1997] ECR I-165, para 20; Joined Cases C-397/98 and C-410/98 Metallgesellschaft [2001] ECR I-1727, para 84; Case C-446/04 Test Claimants in the FII Group Litigation [2006] I-11753, para 202: ‘[A]ccording to established case-law, the right to a refund of charges levied in a Member State in breach of rules of Community law is the consequence and complement of the rights conferred on individuals by Community provisions as interpreted by the Court.... The Member State is therefore required in principle to repay charges levied in breach of Community law…’
32 Case 106/77 Simmenthal [1978] ECR 629, para 24; Joined Cases C-13 and 113/91 Debus [1992] ECR I-3617, para 32; Case C-314/08 Filipiak, judgment of 19 November 2009, nyr, paras 81 and 85.
33 Case C-144/04 Mangold [2005] ECR I-9981. It is not clear whether the Mangold doctrine offers only one type of remedy—the obligation of national courts to set aside domestic provisions which conflict with a general principle—or provides for different remedies by the means of which individuals could protect rights recognised in the form of ‘general principles’. Also in Case C-555/07 Kücükdeveci, judgment of 19 January 2010, nyr, paras 51–53, the only obligation imposed by the Court on national courts was that of the disapplication of national provisions which were contrary to the general principle.
34 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, [1976] OJ L39/40. Case 14/83 Von Colson [1984] ECR 1891, para 23; Case C-177/88 Dekker [1990] ECR I-3941, para 23.
35 Case 36/74 Walrave and Koch [1974] ECR 1405, paras 30–34 (the question whether Art 59 EC had direct effect was answered by the Court by holding that it created ‘individual rights which national courts must protect’); Case C-415/83 Bosman [1995] ECR I-4921, para 114 (the ECJ held only that Art 48 EC precluded the application of the transfer rules in question); Case C-281/98 Angonese [2000] I-4139, para 46 (the Court only held that Art 48 EC precluded an employer from requiring evidence of linguistic knowledge; it did not lay down what should hap pen if the employer demanded such evidence and rejected a candidate on the basis on his failure to produce the evidence). In Case C-438/05 Viking Line [2007] ECR I-10779, the Court of Justice also decided not to specify what the exact consequences would be for trade unions who interfered with the freedom of establishment. In Case C-341/05 Laval [2007] ECR I-11767, the Court of Justice’s decision not to specify the consequences of the trade union’s breach was understandable, given that the Court considered the restriction on free movement to be justified.
36 This claim differs from that advanced by van Gerven, who has argued that all remedial rules can be divided into ‘constitutive’ and ‘executive’, and given the fact that the former are inseparably linked to Community/Union law rights they should be laid down by the Community/Union legislature or judiciary; only the latter should be governed by the principle of national procedural autonomy: van Gerven, W, ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev 501, 525–26Google Scholar. My point is different. I argue that there is a minimum content of liability rules (which for this purpose includes both substantive conditions and procedures) without which a liability regime cannot be considered independent from national laws and therefore the remedy to which it gives rise cannot be regarded as an EU law remedy.
37 Case 36/74 Walrave and Koch [1974] ECR 1405, para 18; Case C-415/83 Bosman [1995] ECR I-4921, para 83; Case C-281/98 Angonese [2000] I-4139, para 32; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, para 47; and Case C-309/99 Wouters and Others [2002] ECR I-1577, para 120.
38 Drake, S, ‘Scope of Courage and the principle of “individual liability” for damages: further development of the principle of effective judicial protection by the Court of Justice’ (2006) 31 EL Rev 841, 858Google Scholar.
39 In Case C-253/00 Muñoz [2002] ECR I-7289, para 27, the Court of Justice has recognised that all regulations, regardless of whether they actually grant individual rights, could be relied upon in civil proceedings. While the Court claims that regulations ‘operate to confer rights on individuals which the national courts have a duty to protect’ (ibid ), arguably what it has in mind is conferral of a right to rely upon a regulation, which stems from its unrestricted direct applicability.
40 Case 152/84 Marshall [1986] ECR 723, para 48; Case C-321/05 Kofoed [2007] ECR I-5795, paras 42 and 45; Case C-14/86 Pretore di Salò [1987] ECR 2545, paras 19 and 20; Case C-168/95 Luciano Arcaro [1996] ECR I-4705, paras 36 and 37. Case C-201/02 Delena Wells [2004] ECR I-723, para 56: ‘[T]he principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights (see Case C-152/84 Marshall [1986] ECR 723, paragraph 48). Consequently, an indi vidual may not rely upon a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party…’
41 Case C-441/93 Panagis Pafitis [1996] ECR I-1347; Case C-194/94 CIA Security International SA [1996] ECR I-2201; Case C-77/97 Österreichische Unilever GmbH [1999] ECR I-431; Case C-443/93 Unilever Italia SA [2000] ECR I-7535. But see Case C-159/00 Sapod Audic [2002] ECR I-5031, para 52, where the Court left the question of the conclusion to be drawn from the inapplicability of the national measure to national law, subject to the principles of equivalence and effectiveness.
42 Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, [1983] OJ L109/8; now Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, [1998] OJ L204/37.
43 Case C-159/00 Sapod Audic [2002] ECR I-5031, para 61.
44 This was precisely how the Court explained that, by requesting the national court to disapply the national technical regulation, it was not departing from the prohibition of horizontal direct effect of directives: see Case C-443/93 Unilever Italia SA v Central Food [2000] ECR I-7535, paras 50–51.
45 Steiner, J, ‘The Limits of State Liability for Breach of European Community Law’ (1998) 4 EPL 69, 94Google Scholar.
46 van Gerven, W, ‘Bridging the Unbridgeable: Community and National Tort Laws After Francovich and Brasserie ’ (1996) 45 ICLQ 507, 529CrossRefGoogle Scholar; Heukels, T and Tib, J, ‘Towards Homogeneity in the Field of Legal Remedies: Convergence and Divergence’ in Beatson, J and Tridimas, T (eds), New Directions in European Public Law (Oxford, Hart Publishing, 1998) 111, 119Google Scholar.
47 It is somewhat unclear whether, in the situation where national law is more lenient, it is indeed an imperative of EU law, stemming from the principle of equivalence, that the national remedy should be used by national courts. While it would be appropriate to use the principle of equivalence in this context, the Court of Justice, when the opportunity arose, held only that national courts are not precluded from using less restrictive conditions of liability. It did not hold that they are obliged to use them in order better to achieve effective judicial protection: Brasserie du Pêcheur, para 66; C-470/03 A.G.M.-COS.MET [2007] ECR I-2749, para 85; C446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, paras 209 and 220.
48 Dougan, M, ‘The Francovich Right to Reparation: Reshaping the Contours of Community Remedial Competence’ (2000) 6 EPL 103, 109Google Scholar.
49 But see Case C-319/96 Brinkmann Tabakfabriken [1998] ECR I-05255, para 29, and Case C-140/97 Rechberger [1999] ECR I-3499, paras 73–77.
50 Brasserie du Pêcheur, paras 59 and 65; case C-302/94 Konle [1999] ECR I-3099, para 58; Case C-424/97 Haim [2000] ECR I-5123, para 48. In particular, see Case C-63/01 Evans [2003] ECR I-14447, paras 84–88. See also case C-173/03 Traghetti [2006] ECR I-5177, para 45, where the Court held that ‘it remains possible for national law to define the criteria relating to the nature or degree of infringement which must be met before State liability can be incurred for an infringement of Community law attributable to a national court adjudicating at the last instance’, but ‘under no circumstances may such criteria impose requirements stricter than that of a manifest infringement of the applicable law’.
51 Case C-373/95 Maso [1997] ECR I-4051, para 41.
52 Dougan, M, ‘Minimum Harmonization and the Internal Market’ (2000) 37 CML Rev 853, 855Google Scholar; Rott, P, ‘Minimum Harmonization for the Completion of the Internal Market? The Example of Consumer Sales Law’ (2003) 40 CML Rev 1107 Google Scholar.
53 However, individuals will not be able to rely on a national rule that offers better protection to consumers than the EU standard, if the national rule is not compliant with the internal market. See Case C-23/99 Commission v France [2000] ECR I-7653, para 33; Case C-71/02 Karner [2004] ECR I-3025, para 34; Case C-441/04 A-Punkt Schmuckhandels [2006] I-02093, para 12. There is no equivalent restriction in the case of national rules on State liability.
54 Dougan, M, National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation (Oxford, Hart Publishing, 2004) 383 Google Scholar.
55 Komninos, above n 4, 391; Albors-Llorens, above n 7, 41.
56 Courage, paras 32–33: ‘In that regard the matters to be taken into account by the competent national court include the economic and legal context in which the parties find themselves and, as the United Kingdom Government rightly points out, the respective bargaining power and conduct of the two parties to the contract. In particular, it is for the national court to ascertain whether the party who claims to have suffered loss through concluding a contract that is liable to restrict or distort competition found himself in a markedly weaker position than the other party, such as seriously to compromise or even eliminate his freedom to negotiate the terms of the contract and his capacity to avoid the loss or reduce its extent, in particular by availing himself in good time of all the legal remedies available to him.’
57 Manfredi, para 64.
58 According to the Court’s judgment in Manfredi, para 100, ‘it follows from the principle of effectiveness and the right of individuals to seek compensation for loss caused by a contract or by conduct liable to restrict or distort competition that injured persons must be able to seek compensation not only for actual loss (damnum emergens) but also for loss of profit (lucrum cessans) plus interest’.
59 See Ruffert, M, ‘Rights and Remedies in European Community Law: A Comparative View’ (1997) 34 CML Rev 307, 313–21Google Scholar. See also Downes, TA and Hilson, C, ‘Making sense of rights: Community rights in EC law’ (1999) 24 EL Rev 121 Google Scholar.
60 Case 8/81 Becker [1982] ECR 53; Case 380/87 Enichem Base [1989] ECR 2491, paras 19–24. See Eilmansberger, T, ‘The Relationship between Rights and Remedies in EC Law: In Search of the Missing Link’ (2004) 41 CML Rev 1199, 1203Google Scholar.
61 Thus, in Case 43/75 Defrenne v Sabena [1976] ECR 455, the Court of Justice allowed reliance upon a provision which merely imposed an obligation by ‘any individual who [had] an interest in the performance of the duties thus laid down’. See also Case C-72/95 Kraaijeveld [1996] ECR I-5403, para 56: ‘[W]here the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration as an element of Community law in order to rule whether the national legislature, in exercising the choice open to it as to the form and methods for implementation, has kept within the limits of its discretion set out in the directive…’
62 In C-87-89/90 Verholen [1991] ECR 3757, the Court of Justice allowed an action based on a directive to be brought by everyone who had ‘direct interest’ in the direct application of the directive. See van Gerven, W, ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev 501, 506Google Scholar. Direct effect attached only for the sake of full effectiveness of Union law is sometimes described as ‘objective’ direct effect, to differentiate it from ‘subjective’ direct effect where the provision grants to an individual an actual substantive right (and not just a right to rely).
63 Case 43/75 Defrenne v Sabena [1976] ECR 455, para 31: ‘[T]he fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties thus laid down’; ibid, para 39: ‘[S]ince Article 119 is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals.’ See more recently, C-438/05 Viking [2007] I-10779, para 58, where both arguments were invoked.
64 van den Bogaert, S, ‘Horizontality: The Court Attacks?’ in Barnard, C and Scott, J (eds), The Law of the Single European Market. Unpacking the Premises (Oxford, Hart Publishing, 2002) 123, 136Google Scholar; Ross, M, ‘Effectiveness in the European legal order(s): beyond supremacy to constitutional proportionality?’ (2006) 31 EL Rev 476, 498Google Scholar.
65 As acutely observed by Dougan, above n 4, 162: ‘[U]niformity (whether understood from an economic and/or socio-political perspective) is neither a general principle nor a primary goal of the Community legal order, and can no longer be portrayed as a blanket justification for pursuing the maximum possible degree of harmonisation. Thus, there is no sound conceptual rationale for some grand scheme to create a unified system of judicial protection in Europe.’
66 van den Bogaert, above n 64.
67 This complexity is recognised by van Gerven, . In ‘Bridging the Unbridgeable: Community and National Tort Laws After Francovich and Brasserie ’ (1996) 45 ICLQ 507, 544CrossRefGoogle Scholar, van Gerven writes about liability of a private party only with respect to breaches of ‘specific obligations imposed upon [individuals] by the law’. Thus, he seems to reject the idea of making individuals liable for breach of EU norms which do not impose ‘specific obligations’ upon them. He does not, however, explain how to determine whether an EU norm imposes such an obligation upon an individual. See also W van Gerven, ‘Crehan and the Way Ahead’ (2006) ECLR 269, 270, where he maintains that in order for a duty to compensate to arise with respect to a private party, ‘a clearly defined obligation must have been imposed’ upon them. However, he does not rule out liability based upon an implicitly imposed obligation (ibid, 271).
68 Eg, it could be argued that very strong policy reasons pointed towards recognising the horizontal applicability of Art 141 EC [now Article 157 TFEU]. Thus, it is wrong to hold that the distinction between horizontal and vertical direct effect is meaningful only with respect to directives and is irrelevant with respect to ‘directly applicable’ provisions of Union law. It follows that I disagree with the view held by A-G Geelhoed in his Opinion of 13 December 2001 in Case C-253/00 Muñoz [2002] ECR I-7289.
69 Most recently, Case C-438/05 Viking [2007] I-10779, para 57: ‘[I]t is clear from its case-law that the abolition, as between Member States, of obstacles to freedom of movement for persons and freedom to provide services would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise, by associations or organisations not governed by public law, of their legal autonomy.’ See also: Case 36/74 Walrave and Koch [1974] ECR 1405, para 18; Case C-415/83 Bosman [1995] ECR I-4921, para 83; Joined Cases C-51/96 and C-191/97 Deliège [2000 ] ECR I-2549, para 47; Case C281/98 Angonese [2000] I-4139, para 32; and Case C-309/99 Wouters and Others [2002] ECR I-1577, para 120.
70 Wyatt, D, ‘Horizontal Effect of Fundamental Freedoms and the Right to Equality after Viking and Mangold, and the Implications for Community Competence’ (2008) 4 Croatian Yearbook of European Law & Policy 1, 6Google Scholar. In this regard it is not clear whether it is indispensable for the private acts challenged to be of a regulatory or at least of a collective character, and whether the ‘legal autonomy’ which the defendant enjoys has to be specifically conferred on him by national law (presumably so as to be analogous to a public law power). Both elements were present and used as justification for applying Art 39 EC [now Article 45 TFEU] to a private organisation in Case 36/74 Walrave and Koch [1974] ECR 1405, para 17, and in Case C-438/05 Viking [2007] I-10779, para 60. However, at para 64 of Viking the Court held that ‘it does not follow from the case-law of the Court … that that interpretation [the possibility to rely upon Art 43 EC [now Article 49 TFEU] by a private party] applies only to quasi-public organisations or to associations exercising a regulatory task and having quasi-legislative powers’. On the other hand, the Court attaches some significance to the fact that ‘in exercising their autonomous power, pursuant to their trade union rights, to negotiate with employers or professional organisations the conditions of employment and pay of workers, trade unions participate in the drawing up of agreements seeking to regulate paid work collectively (para 65).
71 In his Opinion of 23 May 2007 in Case C-438/05 Viking [2007] I-10779, para 36, A-G Maduro argues that ‘the provisions on freedom of movement protect the rights of market participants, not just by limiting the powers of the authorities of the Member States, but also by limiting the autonomy of others’. According to him, the liability of an individual should be based upon the idea of ‘preventing others from enjoying their rights to freedom of movement’. Private actions have to be ‘capable of effectively restricting others from exercising their right of freedom of movement’ to attract applicability of the relevant Treaty provisions. Thus, it seems that A-G Maduro would also regard only that private conduct which restricts free movement rights as caught by free movement provisions, from which it follows that (according to the A-G) individuals are not under any duty positively to promote the internal market.
72 The right question to ask is whether it would be excessively burdensome to make private parties subject to the obligation to comply with any EU provision. Wyatt, above n 70, correctly poses this question with respect to the free movement of goods, and examines the relevant policy considerations in favour of—and against—liability.
73 Cf Dougan, above n 54, 385.
74 Case 222/86 Heylens [1987] ECR 4097, para 14; Case C-50/00 P Unión de Pequeños Agricultores [2002] ECR I-6677, para 39; Case C-263/02 P Jégo-Quéré [2004] ECR I-3425, para 29; Case C-584/08 Unibet [2007] ECR I-2271, para 37; Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483, para 43; Case C-12/08 Mono Car Styling SA, judgment of 16 July 2009, nyr, para 46.
75 Case C-275/06 Productores de Música de España (Promusicae) [2008] ECR I-271, para 62. The right to an effective judicial protection may be in itself treated as a right which requires effective judicial protection. See Case C-185/97 Coote v Granada Hospitality [1998] ECR I-5199, paras 19–27.
76 Art 6 TEU.
77 Art 13 ECHR. See Case 222/84 Johnston [1986] ECR 1651, para 18; Case 222/86 Heylens [1987] ECR 4097, para 14. Ward, A, ‘National and EC Remedies under the EU Treaty: Limits and the Role of the ECHR’ in Barnard, C and Odudu, O (eds), The Outer Limits of European Union Law (Oxford, Hart Publishing, 2009) 329 Google Scholar, 333; Prechal, S, ‘Remedies after Marshall ’ (1990) 27 CML Rev 451, 467Google Scholar.
78 See Case 222/86 Heylens [1987] ECR 4097, para 14 and Case 222/84 Johnston [1986] ECR 1651, para 18, where ‘effective judicial protection’ is described as a principle ‘which underlies the constitutional traditions common to the Member States’. See also Kilpatrick, C, ‘The Future of Remedies in Europe’ in Kilpatrick, C, Novitz, T and Skidmore, P (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 1, 8Google Scholar.
79 Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357, paras 32–33; Case C-453/99 Courage [2001] ECR I-6297, para 25.
80 The obligation to hold a Member State liable for judicial breach of Union law (Köbler, para 36); the extension of the duty of consistent interpretation (Joined Cases C-397 to 403/01 Bernhard Pfeiffer [2004] I-8835, para 111); the obligation to disapply national law which is incompatible with the general principle of non-discrimination (Case C-144/04 Mangold [2005] ECR I-9981, para 77; Case C-555/07 Kücükdeveci, judgment of 19 January 2010, nyr, para 51).
81 Anagnostaras, G, ‘State Liability and Alternative Courses of Action: How Independent Can an Autonomous Remedy Be?’ (2001-2002) 21 YEL 355, 360Google Scholar. CfCaranta, R, ‘Judicial Protection against Member States: a New Jus Commune Takes Shape’ (1995) 32 CML Rev 703, 725Google Scholar, who argues that ‘effective judicial protection’ should be ‘no more than an implication of the principle of full effects of Community law’. However, his argument refers to liability of Member States and is based on the idea that exacting obedience from Member States is justified by the (general) need to protect citizens.
82 Sometimes the effective judicial protection is a principle which underlies the principles of equivalence and effectiveness (Case C-584/08 Unibet [2007] ECR I-227, paras 42–43 and 47), and sometimes it is an independent consideration which can further restrict national procedural autonomy (Case C-13/01 Safalero [2003] ECR I-8679, paras 49–50; Case C-12/08 Mono Car Styling SA, judgment of 16 July 2009, nyr, para 49: ‘Thus, whilst it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires, in addition to the principles of equivalence and effectiveness, that the national legislation does not undermine the right to effective judicial protection…’ (emphasis added)).
83 According to settled case law of the Court, EU provisions may be relied upon whenever they are unconditional and sufficiently precise: recently, see Case C-138/07 Cobelfret [2009] ECR I-731, para 58. See also Monti, G, ‘Anti-competitive agreements: the innocent party’s right to damages’ (2002) 27 EL Rev 282, 301Google Scholar. CfHiljemark, L, ‘Enforcement of EC Competition Law in National Courts: The Perspective of Judicial Protection’ (1997) 17 YEL 83 Google Scholar.
84 It seems that, in the context of Francovich liability, the Court demands something more that just a mere right to rely in order to justify the imposition of liability upon the Member State: see Case C-222/02 Peter Paul [2004] ECR I-9425, paras 46 and 50.
85 Eilmansberger, above n 60, 1232 and 1242. See also Ruffert, M, ‘Rights and Remedies in European Community Law: A Comparative View’ (1997) 34 CML Rev 307, 310Google Scholar.
86 The view that a legislative measure offers ‘insufficient’ protection could raise the question of its validity under EU law. Thus, the claim of the ‘insufficiency’ of judicial protection provided by the measure would be quite unattractive to the Court of Justice, unless the Court argued that the failure to ensure effective judicial protection in the measure was not a ‘real’ failure because the measure had been drafted against the background of existing rules of EU law, including the law of private party liability in damages. Here, the incompleteness of legislative remedies would be a confirmation of the EU legislator’s intention to rely on non-legislative remedies.
87 Dougan, above n 4, 159–61. See also C Kilpatrick, ‘The Future of Remedies in Europe’ and Weatherill, S, ‘Addressing Problems of Imbalanced Implementation in EC Law: Remedies in an Institutional Perspective’ in Kilpatrick, C, Novitz, T and Skidmore, P (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000), 1, 14–15, and 87, 108 respectivelyGoogle Scholar.
88 Eg, in Case C-168/00 Leitner [2002] ECR I-2631, the Court of Justice concluded that ‘non-material damage’ constitutes ‘damage’ for the purpose of Art 5 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours ([1990] OJ L158/59) because ‘compensation for non-material damage arising from the loss of enjoyment of the holiday is of particular importance to consumers’ (paras 21–22). This shows that the classification of a particular negative consequence as ‘damage’ was dependent upon what is ‘particularly important to consumers’ who go on package holidays. With respect to other norms of EU law, the definition of ‘damage’ or ‘loss’ is likely to be equally contextdependent.
89 Joined Cases C-387, 391 and 403/02 Berlusconi [2005] ECR I-3565, paras 73 and 74.
90 Joined Cases 205 to 215/82 Deutsche Milchkontor [1983] ECR 2633, para 28 (limits on the recovery of the unlawfully paid benefit to an individual).
91 Case C-161/06 Skoma-Lux [2007] ECR I-10841, para 36.
92 Cfvan Gerven, W, ‘Non-contractual Liability of Member States, Community Institutions and Individuals for Breaches of Community Law with a View to a Common Law for Europe’ (1994) 1 Maastricht Journal of European and Comparative Law 6 CrossRefGoogle Scholar; Reich, N, ‘The Interrelation between Rights and Duties in EU Law’ forthcoming in (2010) 29 YEL Google Scholar, and Reich, N, ‘Horizontal Liability in EC Law: Hybridization of Remedies for Compensation in Case of Breaches of EC Rights’ (2007) 44 CML Rev 705, 714Google Scholar; who support the use of Francovich and the case law on Member State liability in the formation of private party liability rules.