Andrean Slavchev* 
With its revolutionary Judgment of 19 November 1991 in case Andrea Francovich and Danila Bonifaci and others v. Repubblica Italiana the Court of Justice of the EU (CJEU) introduced for the first time the principle of State liability for breaches of European Union law. The Court further developped that principle in Judgment of 5 March 1996 in joined cases C-46/93 and C-48/93 (Brasserie du Pêcheur SA v. Bundesrepublik Deutschland and The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and others), Judgment of 8 October 1996 in joined cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 (Erich Dillenkofer, Christian Erdmann, Hans-Jürgen Schulte, Anke Heuer, Werner, Ursula and Trosten Knor v. Bundesrepublik Deutschland), Judgment of 30 September 2003 in case C-224/01 (Gerhard Köbler v. Republik Österreich), Judgment of 13 June 2006 in case C- 173/03 (Traghetti del Mediterraneo SpA v. Repubblica Italiana).
This article is an overview of the most important procedural problems that have arisen before Bulgarian courts when hearing applications for damages caused by the State in violation of EU law.
The first problem that has arisen concerns the admissibility of the application under art. 4 § 3 of the Treaty on European union (TEU). Some courts declared inadmissible such applications, because of the lack of analogous legal bases in Bulgarian legislation. Others discontinued the proceedings pointing out that national courts cannot be held liable for their acts which have become res judicata.
The second major problem is the conflicting case-law on the legal basis of such applications – some courts have admitted that this should be found in the special national law on State liability, other courts have referred to tort law as a legal basis, yet others have argued that the legal basis should be found directly in EU law.
The third major problem is how to determine which court has jurisdiction to hear legal disputes, concerning state liability for damages caused as a result of a breach of EU law and how to identify the applicable procedural rules. At present, there is conflicting jurisprudence of the two supreme courts on the applicable procedure for hearing such claims. There is also discrepancies about which courts – civil (“common”) or administrative, should have the jurisdiction to hear these claims.
These difficulties can be explained by the existence of a legislative gap in Bulgarian law. The gap itself constitutes an infringement of EU law, since Member States are under the obligation to lay down the necessary procedures for hearing claims under art. 4 § 3 of the TEU.
Until this gap is filled, it must be admitted that the claim for damages caused by a breach of EU law by the State is admissible, but the court should consider in order to the practice of the CJEU whether it has jurisdiction to hear the claim and what procedural order to apply.
Link to the article in Bulgarian language: ОБЗОР НА ПРОЦЕСУАЛНИТЕ ПРОБЛЕМИ В БЪЛГАРСКАТА СЪДЕБНА ПРАКТИКА ОТНОСНО ПРОИЗВОДСТВОТО ПО РЕАЛИЗИРАНЕ НА ОТГОВОРНОСТТА НА ДЪРЖАВАТА ЗА НАРУШЕНИЕ НА ПРАВОТО НА ЕВРОПЕЙСКИЯ СЪЮЗ