KÖBLER AND FRANCOVICH: WHAT IS THEIR RELATIONSHIP?

· MembersOnly, Английски език, Всички, ДИСКУСИИ, Общи принципи на правото на ЕС, Отговорност на държавата, Том XVII
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Author

Zsófia Varga[1]

 

1. Introduction

 

The Court of Justice of the European Union (CJEU) held in the judgment in Köbler that Member States are obliged to make good the damage caused to individuals in cases where the infringement of EU law stems from a decision of a Member State court adjudicating at last instance.[2] The conditions of this liability are, in principle, the same as those governing State liability under EU law in general, that is, where the rule of law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. However, taking into account the specific nature of judicial function, the CJEU held that State liability for infringement of EU law by a national Supreme Court can be incurred only in the exceptional case where the court has ‘manifestly infringed the applicable law’.

Since then, Köbler liability has been thoroughly analysed. There is, however, a dimension of the liability criteria that appears to have been neglected. It concerns the difficulty in identifying the State body responsible for the breach, and in linking the breach to the judicature’s action. These issues were raised by Anagnostaras in the early 2000s. Considering the doctrine of State liability in general, he stated even before the Köbler judgment that ‘it is not always easy to determine the capacity – legislative, administrative or judicial – in which the State has committed a given violation’.[3] Later, Rodríguez studied the problem in the context of Köbler liability.[4] Since then, the allocation of responsibility in State liability actions has not been much discussed in academic writing, despite the abundance of literature on the Köbler doctrine. Therefore, the present paper focuses on this specific issue, and investigates whether the practice has actually encountered such problems as foreseen by the above-named academics.[5]

 

2. Concurrent liability of several branches of government

 

The research confirms that it is often possible to link the damages sustained by the individual with the activity of more than one branches of government when confronted with national court decisions incorrectly applying EU rules.[6] In particular, this situation may arise where the application of directly effective provisions of a directive is at stake before a Supreme Administrative Court, following the failure of the legislature to implement the directive into the national legal order. If the administrative authority and the administrative court give their decisions on the basis of the national rule contrary to the EU law, it will not be easy to determine whether the loss sustained by the individual is primarily due to the conduct of the legislature, the administration or the judiciary.

Even though it is less obvious, the case is not essentially different in the event of the application of a domestic provision contrary to directly applicable primary EU law by the national court. Despite of the absence of any obligation on the side of the national legislature to adopt implementation measures, it is, however, obliged to render the national law compatible with the EU law with regard to Article 4(3) TEU. Therefore, in the event of infringement of this obligation, one may wonder whether the legislature or the judiciary is (more) in breach of EU law for not having provided a legal framework compatible with EU law for the individual’s case.

Therefore, we can pose the question that Anagnostaras has already raised: What kind of breach should be established, if the affected party were to bring a liability action on the basis of the loss suffered as a denial of their rights conferred by the directive? A legislative one, based on the failure of the legislature to implement the directive; an administrative one, linked to the failure of the administrative authority to apply the provisions of a directly effective measure; or a judicial one, originating from the refusal by the national court to overturn the administrative decision that is inconsistent with EU law?[7]

It would mean that in these situations it is theoretically possible for the individual to invoke a violation of EU law by the national legislature or administration instead of suing on the basis of a judicial breach. However, there are two limits to this freedom of choice. First, under liability law, compensation for damages necessitates the determination of the most proximate cause of the sustained loss. Second, the mitigation principle requires that the individual shall do everything in their power to avoid or mitigate the damage, including availing themselves of all remedies at their disposal. These will be discussed further on in the paper.

Meanwhile, as Anagnostaras points out, it is not possible to provide any generally applicable test as to the specific circumstances under which the damage will be linked to the one or the other branch of the State.[8] The matter will thus be resolved on an ad hoc basis. It means that several individuals can bring a liability action invoking violation by the legislature, or several courts may apply the Francovich doctrine instead of the Köbler to decide on a State liability claim.

The question emerges whether the determination of the exact capacity in which a violation has been committed makes any difference to the attainment of the objectives pursued under the State liability doctrine. These objectives are twofold: on the one hand, the enhancement of the effectiveness of the EU legal order and, on the other hand, the protection of the rights it confers upon individuals.[9]

In my opinion, the answer to this question is positive, as the degree of culpability triggering State liability differs, based on the capacity in which the State has committed the violation.[10] This distinction would only be irrelevant if one should solely take into account the degree of precision of the infringed rule and the clarity of the law in the field to determine the seriousness of the breach. However, the gravity of the violation will also depend on the discretion that the defaulting national institution enjoys regarding the application of the norm.[11] And, in spite of apparent cohesiveness, legislative, administrative and judicial bodies do not enjoy the same discretion regarding the application of EU law.[12]

In this regard, we can consider damages suffered as the result of the non-application of a directly effective provision of a Value Added Tax (VAT) directive, e.g. the rule providing exemption of VAT payment.[13] As for the legislature, its procedural obligation regarding the application of this substantive norm is crystal-clear: it has to implement the directive into the national legal order. The violation of this obligation automatically gives rise to liability, as the legislature enjoys no discretion in this respect. However, the margin of discretion of the national administration is wider; the violation of its obligation to apply the provision having direct effect does not trigger liability automatically. Instead, liability depends on the clarity of the substantive norm and the way other institutions have interpreted it, amongst other factors. As for the national Supreme Court, the standard of culpability is even higher, as liability only arises in the event of manifest disregard of the applicable law.[14]

Therefore, the standard of liability depends on which branch of government committed the breach of the same substantive norm. It means that the individual is more likely to receive compensation if they invoke the breach by the legislature or the executive, instead of suing on the basis of a judicial violation.

Rodríguez even concludes that Köbler liability – combined with an obligation to bring up the issue before the court – actually lowers the standard of protection of individual rights by hardening the conditions of State liability.[15] He points out that the solution to this problem could be the application of a real State unity doctrine, i.e. holding the Member State liable and not a specific State body.[16]

 

2.1         Causation in the case of multiple breache

 

2.1.1        Theory

 

As already mentioned, there is a twofold limit that is relevant to identify the branch of government responsible for the breach. The first is the causation element, which is to be established by the national court while linking the claimant’s loss with the activity of the defaulting institution. The second is the mitigation principle, which guides the claimant’s conduct and influences their choice regarding the branch of government to sue.

In any damages remedy, compensation necessitates the determination of the most proximate cause of the sustained loss. According to Anagnostaras, the arbitrary exercise by judges of the discretion left to them with regard to the establishment of causation can seriously compromise the right of parties to receive compensation.[17] In the view of Rodríguez, the CJEU appears to have difficulty attributing an infringement to the responsible branch of government.[18] Several scholars predict that, the CJEU, as well as national courts deciding on liability claims, will try to avoid inculpating the judiciary if there is a possibility to link the breach with any Member State institution other than courts.[19]

 

 2.1.2        CJEU case law on multiple breaches: the Commission v Italy case

 

The CJEU case law seems to confirm this assumption. The responsibility was disconnected from the judicial error in the Commission v Italy judgment, delivered by the CJEU in an infringement procedure.[20]

In this case, the Commission brought an action before the CJEU against Italy because the latter maintained in force a law that, as applied by administrative authorities and courts, was in breach of the EU law. Although the original law which gave rise to these findings had been amended, further references from Italian courts followed, showing that it was still applied by Italian courts. The Commission initiated an infringement procedure before the CJEU.

At the beginning of its statement of reasons, the CJEU confirmed that a failure to fulfil obligations may be established whichever body of a Member State is responsible for the infringement. The Court even stated that the Italian law in question was neutral with respect to the EU law and, therefore, it must be examined in the light of its interpretation by the Italian courts. However, the CJEU shifted its argumentation in the end, coming to the conclusion that the infringement did not occur as a result of the action of the judiciary, but as a consequence of Italy’s failure to amend the law in question. The CJEU stated that the Italian rule was not clear enough and, hence, it was subject to multiple interpretations, some of them leading to infringements of the EU law. As such, the judgment against Italy was not based on an infringement of the EU law by the national Supreme Court. Instead, it was held that Italy had failed to amend the national law, and administrative practice and national case law led to the breach of EU law. Consequently, Commission v Italy was not a pure judicial infringement.[21]

Nevertheless, as Hofstötter argues, the judgment is full of indications that the CJEU in essence dealt with judicial conduct. In this way, the Court held a Member State responsible for an infringement committed by its judiciary for the very first time, albeit in the guise of a breach by the legislation. Moreover, the CJEU included certain paragraphs to accept the possibility of an infringement by a Member State court of last instance.[22]

Several academics point out that the judgment in Commission v Italy should also be read as a pragmatic solution, motivated by the desire not to impinge excessively on the cooperative relationship between national courts and the CJEU. This is why both State functions – judicial and legislative – have been added in order to establish the infringement and also, just as in Köbler, the standard of liability has been raised.[23]

 

2.1.3        Tendency to avoid judiciary inculpation

 

Certainly, the CJEU has its own reasons for trying to dissociate liability from the conduct of the national courts. Even if the reasons may be different, one may suppose that the same tendency holds true for Member State courts adjudicating on State liability claims.[24] In fact, given the exceptional nature of judicial and legislative liability in national civil laws, it seems logical that national courts try to associate the breach with the national administration’s conduct, if there is a possibility to do so.[25]

 

 2.2         The principle of mitigation of damages

 

2.2.1        The duty of mitigation

 

Beside the question of causation, the duty of damage mitigation may also be relevant to determine the branch of government against which a liability claim must be brought.[26] The CJEU appears to have extended its application of this principle to the State liability field.[27] It means that an aggrieved individual must take all reasonable steps in order to prevent the occurrence of damage or limit its scale, including the obligation to avail themselves, correctly and in time, of the legal remedies open to them in the national courts.

The question can be raised whether the duty of mitigation prevents the individual from bringing a liability action based on a breach of EU law by the legislature or the administrative body, if they have not lodged an appeal against the allegedly illegal decision before the national (administrative) court. If the exhaustion of substantial remedies is considered as a prerequisite for a liability action, this may force the claimant to challenge the last measure that contributed to their damage. In this situation, they have to claim damages on the grounds of an (administrative) court’s erroneous judgment, instead of suing for damages on the basis of a breach by the legislature or the administrative body.[28] Moreover, national courts sitting on State liability claims may find that a violation of the mitigation duty breaks the chain of causation between the breach committed by the legislature or the administrative authority and the loss sustained by the claimant. It may also affect the measure of compensation that the claimant will finally receive.[29]

 

2.2.2        CJEU case law related to the principle of effectiveness: the Metallgesellschaft and the Fuß cases

 

However, the CJEU did not apply the mitigation principle in the Metallgesellschaft and Fuß cases, both in relation to actions for damages on the basis of the conduct of the legislature and the administrative body, respectively.[30] In this situation, the main question was whether a liability action was permitted without seeking substantive justice on the grounds of the direct effect doctrine in an appeal procedure before the competent administrative authority or administrative court.

The Metallgesellschaft judgment concerned a liability claim based on a legislative breach since the claimants were obliged to pay tax under UK rules in violation of EU law. It was suggested that the claimants could have avoided the payment by contending their rights conferred by the EU rules before the tax authority. As the national law was contrary to the EU rules, these claims would have probably been rejected by the tax administration. However, this decision could have been challenged before the competent administrative authority and the national courts, as infringing the principles of direct effect and supremacy. In those proceedings, the administrative court should have considered the above principles of EU law. Having to decide on the above arguments, the national court adjudicating the liability claim made a request for preliminary ruling to the CJEU on whether the failure to follow this procedure constituted a violation of the mitigation principle.

The CJEU found that the mitigation duty should not reach the point of overburdening the affected individuals by making the admissibility of their liability claims subject to the previous exhaustion of costly legal actions, regardless of their prospects of success. This would make individual protection excessively difficult and contrary to the principle of effectiveness. The only possibility to challenge the tax authorities refusal the on the basis of the principles of direct effect and supremacy was not therefore considered to be enough to establish a violation of the mitigation duty in that case.[31]

The Fuß judgment concerned an officer who sought compensation, either in the form of time-off instead of payment or damages, for having worked in excess of the maximum average weekly hours limit laid down by EU law. Under German law, entitlement to compensation could only arise if the claimant had first submitted a request seeking compliance with the number of working hours legally allowed. The national court sitting on the liability claim referred a preliminary question to the CJEU, asking whether the national provision was compatible with the conditions of State liability under EU law. In particular, it sought guidance on whether EU law precluded making the right to compensation conditional on a claimant having first drawn to the employer’s attention the alleged infringement of EU and having requested compliance with that provision.

The CJEU noted that aggrieved parties might be expected to show reasonable diligence in limiting the extent of their loss or damage. Nevertheless, it also observed that requiring employees to request compliance with a directly effective provision of EU law had the effect of shifting the burden of compliance from the authorities to individual workers. In addition, the CJEU considered that workers, being the weaker parties in employment relationships, might be reluctant to claim rights against their employer. Hence the CJEU concluded that a national procedural rule requiring a claimant to make a prior application of compliance with the directive was incompatible with the principle of effectiveness.[32]

It may seem to follow from these judgments that the possibility for a claimant to bring a liability claim on the basis of a legislative or administrative breach cannot depend on having challenged the allegedly illegal decision before the competent national (administrative) courts in an appeal proceeding.[33] Nevertheless, it appears that the above two CJEU judgments did not establish a generally applicable principle, but, on the contrary, the CJEU decided on the basis of the specific factual and legal background of these cases.

In Metallgesellschaft, the conclusion appears to have been reached due to the uncertainty in which the claimants were placed by the inconsistent national legislation, and the complexity of the procedures that had to be followed to receive a very uncertain remedy.[34] It appears that, in their situation, the tax advantage would have been denied in any case.[35] In Fuß, the CJEU attributed importance to the fact that the aggrieved party was in the weaker position in an employment relationship. Nevertheless, entitlement to compensation may well be limited or excluded, if a party that is considered to be an equal in a contractual relationship becomes aware of a breach or anticipated breach of EU law, and is in a position to take reasonable steps to limit or prevent such a breach but fails to do so.[36]

 

2.2.3        CJEU case law related to the principle of equivalence: the Transportes Urbanos case

 

In the Transportes Urbanos case, the CJEU examined a national rule requiring the prior exhaustion of remedies in a liability action from the perspective of the principle of equivalence.[37]

The judgment concerned Spanish rules which made an action for damages against the State subject to the exhaustion of remedies if the claimant invoked a breach of EU law. However, the exhaustion of remedies was not required if they claimed damages for a breach of the Constitution. The compatibility of these rules with EU law was the subject of the preliminary reference before the CJEU. In its judgment, the CJEU decided that the two actions in question could be considered ‘similar’ and, therefore, should both follow the same procedural rules.[38] It held, therefore, that the Spanish rules were contrary to the principle of equivalence.

 

2.2.4        The principle of national procedural autonomy

 

Considering all arguments above, it does not seem possible to offer general guidance on the extent of the mitigation principle under EU law in the context of State liability.

This question appears to fall within the general concept of national procedural autonomy. According to the principle, EU law does not interfere with the nature of the action, or with the domestic arrangements on the hierarchy of the legal means guaranteed by national law for the protection of the infringed rights of individuals.[39] Therefore, Member States are allowed to require the previous exhaustion of all alternative courses of action before a State liability suit can finally be held admissible.[40] The only limitation in this regard is not to compromise the effectiveness of EU law and to respect the principle of equivalence.[41]

Therefore, it appears possible for Member States to prohibit liability actions where other means of redress exist but the individual has failed to use them within the applicable time limits. This may result in an obligation for the individual to appeal the challenged legislative or administrative decision before national (administrative) courts. As for liability actions, this may have a consequence in shifting the responsibility onto national (administrative) courts, therefore favouring the application of Köbler claims over Francovich actions.[42]

In fact, the exhaustion of prior remedies is a condition for judicial liability claims in many legal orders. According to Scherr, the mitigation duty, i.e. the ‘primary use of appellate review’, is a prerequisite to a liability action in most Member States.[43] However, one should not forget that national rules on public liability claims based on breaches of national law differ, by nature, from actions based on EU law violations. This makes it even more difficult to evaluate the national regimes in the context of violation of EU law. First of all, in several legal systems, legislative and judicial liability is rare or even non-existent. Moreover, there is no relation between the branches of government concerning their respective liabilities regarding the application of law, with the exception of EU law matters.

In a recent case, the CJEU was invited to pronounce on the question whether a national court may incur liability on the grounds of the Köbler doctrine even when the claimant has not exhausted all legal remedies available to them in the national legal order. This was the Tomášová case.

 

2.2.5        CJEU case law related to the principle of national procedural autonomy: the Tomášová case

 

The Tomášová case concerned a liability claim based on an infringement of EU law attributable to a national court. The violation consisted in the failure by the court to assess of its own motion in proceedings for enforcement of an arbitration award whether the terms of the consumer contact at issue were unfair. Had the terms been assessed, the enforcement court would have been obliged to disregard them because of their unfair nature. However, the court instead granted an application for the recovery of sums in accordance with the contested clauses. The consumer lodged a liability claim on the grounds of the decision given in these proceedings for enforcement of an arbitration award. The national court sitting on the liability claim found that the consumer had not exhausted all national remedies, an action for recovery of a sum unduly paid being always available to them. Therefore, it asked the CJEU whether the national court could incur liability even if a person deemed to have suffered damages has not exhausted all national legal remedies available to them. It also asked whether an action for recovery of a sum unduly paid had priority over compensation for damages.

The CJEU stated, succinctly, that the relationship between a liability action and the other actions available under national law, in particular an action for recovery of a sum unduly paid, is determined by the national laws subject to observance of the principles of equivalence and effectiveness.[44]

 

2.3         National case law on liability claims for breach of rights under VAT directives

 

The case law on State liability for breach of individual rights conferred by VAT directives is a good illustration of issues concerning concurrent liability or joint responsibility by several branches of government.[45] In this matter of law, individuals are often confronted with a simultaneous breach of EU rights by several branches of government. Moreover, the violation of the EU rules granting VAT exemption rights to individuals has already given rise to numerous State liability claims.

It is noteworthy that in several Member States, the defendant in a liability action is the State itself, while in other cases, the specific branch of government. Certainly, a liability action is necessarily based on a specific illegal act of one or another State body in both scenarios. Nevertheless, national courts adjudicating on State liability claims will presumably have more leeway in evaluating the infringement of EU law in its complexity if the defendant is the State itself. On the contrary, the national court judging the liability claim can only decide on a liability of the Member State body sued by the claimant if the defendant is the defaulting State body itself. Therefore, national procedural rules which foresee liability of the State instead of that of a specific State body appear to be more favourable with regard to the application of the State liability doctrine.

The following judgments can demonstrate that damages caused by violation of individual rights conferred by VAT directives may give rise to liability claims based on either legislative, administrative, or judicial errors. Thus, there is no clear general rule to define the branch of government that is to be accused of violation in these cases.

 

2.3.1        Liability actions based on legislative omission

 

In several German cases, the responsibility for violation of EU law was attributed to the national legislature, given the inconsistency of the national rules with the VAT directive. The liability actions were preceded by a CJEU judgment holding that Germany had been in violation of the EU directive since it had exempted State-owned casinos from VAT, whereas privately-owned casinos were subject to VAT.[46] Following the CJEU judgment, several claims were brought by former operators of private gambling establishments in order to seek compensation from the State for the VAT unduly paid when the discriminatory German law was in force. However, the Kammergericht Berlin (Berlin Higher Regional Court) and the Bundesgerichtshof (Federal Court of Justice, hereinafter BGH), denied compensation by the State for different reasons.

In its judgment of 24 June 2011, the Kammergericht Berlin held that the infringed provision of the directive did not confer rights on individuals but aimed to accomplish neutral taxation.[47] Lock criticizes this conclusion and states that, prior to this decision, the CJEU had already held the provision to be directly effective, and it explicitly stated that individuals could rely on provisions ‘in so far as they define rights which individuals are able to assert against the State’.[48] As for a judgment of the BGH, handed down on 24 June 2012, the damages claim was refused for a different reason.[49] Referring to the CJEU case law, the BGH acknowledged that Member States had to respect the principle of fiscal neutrality and could not make the benefit of exemption dependent on the identity of an operator of gambling activities and gambling machines. Nonetheless, the BGH considered that the failure to implement the directive into German law within the required timeframe did not constitute a sufficiently serious breach to trigger State liability.

In conclusion, in these cases a previous CJEU judgment had already established the German legislation’s inconsistency with EU law.[50] Such a finding usually serves as an incentive for the aggrieved party to raise the liability of the legislature. This can help to explain why the legislative act, and not the administrative decision, was at issue in the proceedings.[51] While in the above cases German courts accepted the possibility of bringing a liability action on the basis of a legislative breach, with no need for prior contestation of the administrative decision, the Belgian Supreme Court arrived at a different solution.

 The Belgian Cour de Cassation (Supreme Court) handed down a judgment on 23 June 2008, based on facts similar to those in the above German cases. A company requested compensation from the State for the VAT paid in the past, the legal basis of which was later declared contrary to the EU directive.[52] The Cour de Cassation found that the claimant company had not lodged an appeal against the administrative decision in time. This omission was sufficient to break the causal link between the action of the legislature and the damage suffered. It was irrelevant in this respect that the unlawfulness of the national rule with regard to the EU law had not been established at the time of the facts. The Cour de Cassation held that it should have not prevented the claimant from availing themselves in time of all legal remedies available to them, i.e. to appeal against the administrative decision. The Belgian Court de Cassation thus denied a liability claim where previous administrative remedies had not been exhausted.

As explained above, the Transportes Urbanos case before the Spanish Tribunal Supremo (Supreme Court) concerned a liability action against the State based on the legislature’s act.[53] The case related to the obligation to exhaust the remedies available according to the principle of equivalence. The factual background of this case is similar to the one in the Belgian action above and can be summarized as follows. The Transportes Urbanos Company had paid an undue amount of tax as a consequence of the incorrect implementation of the EU directive into Spanish law. The CJEU judgment that declared the Spanish law contrary to the directive was only delivered after the deadline for the company to request the rectification of its self-assessment and the refund of overpayments had already passed.[54] The claim for damages that the company brought before the Council of Ministers was dismissed. According to the council, the direct causal link between the infringement of EU law and the damages was broken due to the fact that Transportes Urbanos had failed to request the rectification of the self-assessments in due time. The company challenged the decision before the Tribunal Supremo, which referred a request for preliminary ruling to the CJEU.[55] The CJEU found that, since the prior exhaustion of remedies was not a condition for compensation of damages incurred from a breach of the Constitution under Spanish law, the rule concerning EU liability claims infringed the principle of equivalence.[56] In its final judgment handed down on 17 September 2010, the Tribunal Supremo held the State liable for the breach of the EU directive by the legislature and ordered it to pay compensation. In particular, the court declared that ‘there is a direct causal link between the breach and the damage sustained by the injured person, and it cannot be sustained that such causal relationship is breached because the claimant did not exhaust the administrative and judicial remedies available against the tax decision’. It therefore overruled its previous case law, under which failure to challenge administrative decisions in due time entailed the breach of the causal link.[57]

 

2.3.2        Liability actions based on a breach by the tax administration

 

The previous cases concerned liability claims due to violation of EU law by the legislature; especially on the grounds of the non- or incorrect transposition of the VAT directives. In other cases the actions were, however, directed against the tax authority’s decision. Two decisions are noteworthy in this respect.

In a judgment of 9 November 2005, the Danish Vestre Landsret (Western High Court) ordered the Ministry of Taxation to pay damages for the violation of the VAT directive.[58] The civil liability proceeding was preceded by a CJEU judgment declaring the national implementation measure contrary to EU law.[59] As the provision of the VAT directive was clear, the Vestre Landsret found in the subsequent proceedings that the violation of the norm constituted a qualified infringement of EU law engaging the liability of the Ministry of Taxation. Because of this, it ordered the Ministry to compensate the claimant for the tax unduly paid, except for the part that had been passed on to others.

The German Bundesfinanzhof (Federal Finance Court) handed down a judgment on 13 January 2005 with a background that was similar to the above Danish case. The main question was whether a tax decision that proved to be contrary to the EU law in the light of the subsequent jurisprudence of the CJEU, can give rise to compensation.[60] In this case, the claimant company operated an out-patient care service, and was not exempt from VAT for the period between 1989 and 1991. The company initiated an action to obtain compensation for the tax unduly paid. The Bundesfinanzhof, while hearing the case, submitted a request for preliminary ruling to the CJEU. In its preliminary ruling pronounced in 2002, the CJEU gave an interpretation of the directive in favour of the claimant.[61] The Bundesfinanzhof thus had to decide whether the claimant had the right to VAT compensation for the overpaid tax in the light of the subsequent CJEU jurisprudence and on the basis of the State liability doctrine. The Bundesfinanzhof examined whether the assessment decisions of the Finanzamt (Tax Office) should be considered as a sufficiently serious violation of the EU law. It responded in the negative, explaining that even the Bundesfinanzhof itself had doubts about the correct interpretation of the directive at the time of the case. It meant that the conditions for State liability were not met and the request was rejected.

 

2.3.3        Liability actions based on a breach by the judiciary

 

Moreover, several State liability actions for violation of rights conferred by the VAT directives were directed against the administrative courts’ judgments confirming decisions of the tax authority. Two examples are provided.

In a decision dated 6 June 2009, the Swedish Justitiekanslern (Office of the Chancellor of Justice) awarded compensation for damages suffered due to the violation of EU law by the Regeringsrätten (Supreme Administrative Court).[62] In the preliminary proceedings, the claimant company invoked, in vain, the EU directive before the tax authority in order to exercise their right to VAT deduction. Then the administrative court confirmed the decision of the fiscal authority, and this judgment became final after the refusal by the Regeringsrätten to declare admissible the appeal lodged against it. Later, the company brought a liability action against the State before the Justitiekaslern, claiming compensation for the damages suffered as a result of the preliminary proceedings. The Justitiekaslern found that the violation of law by the Regeringsrätten was sufficiently serious to give rise to compensation. According to the Justitiekaslern, the Regeringsrätten should have declared the appeal admissible, with regard to the new CJEU case law on this matter. Specifically, the CJEU had rendered a judgment that was favourable to the claimant, just before the Regeringsrätten’s refusal. Therefore, the appeal should have been declared admissible in the light of this new CJEU jurisprudence. In this case, the finding of a sufficiently serious breach of EU law was due to the new CJEU jurisprudence, which emerged only before the Regeringsrätten’s decision. Therefore, the decision of attributing the violation of EU law to this court appears to be justified.

The Bulgarian Sofiyski gradski sad (Sofia City Court) handed down a judgment on 3 January 2014 in a liability claim for violation of EU law by the Varhoven administrativen sad (Supreme Administrative Court).[63] The claimant rebuked the Varhoven administrativen sad for having confirmed the decision of the fiscal administration declining his claim for VAT deduction. The Sofiyski gradski sad rejected the liability action. The court stated that the judgment of the Varhoven administrativen sad was correct in the light of CJEU case law relative to VAT deductions. Moreover, the provisions of the directive were sufficiently clear, meaning that the Varhoven administrativen sad was not in breach in its obligation to make preliminary reference either. The conclusion of this case is that if the EU directive was correctly implemented into the national legal order, the liability of the legislation and the administration cannot be raised. In this case, only the jurisdiction can be rebuked for having violated EU law, and especially, for failing to interpret the national rules in conformity with the directive.

 

2.3.4        Liability action based on a breach by several branches of government

 

Moreover, there are cases showing that the contribution to the breach by several branches of government can be considered as a whole when deciding on liability claims. In this respect, two cases will be presented briefly. The first one is an example of a situation where the defendant is the State. The second one is an illustration for the establishment of joint and several liability of the three branches of government, all defendants in the liability action.

In a judgment dated 5 July 2013, the Finnish Korkein oikeus (Supreme Court) awarded damages in favour of the claimant for the violation of his rights conferred by EU rules.[64] The case concerned a decision of the fiscal administration, confirmed by the Korkein hallinto-oikeus (Supreme Administrative Court), imposing the payment of VAT and other taxes on the claimant. In the liability proceedings lodged against the State before the Korkein oikeus, the court referred to CJEU judgments to find that the Finnish system was discriminatory and contrary to EU rules.[65] Therefore, it ordered compensation for the damages suffered as the result of the application of the unlawful national fiscal rules in the claimant’s case. This judgment is not clear on the question of whether the violation of EU law was attributable to the legislature, to the tax administration or to the administrative court. In fact, there are several particularities in this case. First, the system as a whole has been found contrary to the EU law. Second, by the time the judgment was made, the CJEU had already rendered a judgment declaring the Finnish regulation contrary to the EU law. Third, the State was the defendant, and not the national Supreme Court. It meant that the civil court had the possibility to address the breach of EU law by the State as an entity, without having to narrow the scope of examination for the court judgment. In spite of that, there are indications showing that Finland was especially held liable for the erroneous decision of the Korkein hallinto-oikeus. In particular, the Korkein oikeus emphasized that the State liability principle applies even to damages incurred as a result of the decision of the Member States’ Supreme Court.[66] In my view, all the above circumstances contributed to the establishment of liability and the allocation of damages in the end.

Contrary to Finnish law, the defendant in a State liability action is the specific State body responsible for the breach under the Bulgarian rules. Therefore, the consideration of multiple breaches by several State bodies is only possible if the claimant sues all branches of government. A recent Bulgarian judgment provides an example for the establishment of joint and several liability of several State bodies. In its judgment dated 26 November 2015, the Bulgarian Okrazhen sad Yambol (Regional Court, Yambol) has established joint and several liability of the Varhoven kasatsionen sad, as well as national administrative and legislative bodies for the damage sustained by a company due to the application of a national act contrary to EU law.[67] Therefore, it ordered them to pay compensation to the company. In its judgment, the Okrazhen sad Yambol pointed out that the European Commission had initiated infringement proceedings against Bulgaria claiming violation of EU law due to the contested provision of the national privatization control act.[68] Therefore, as the Okrazhen sad Yambol argued, the Bulgarian Parliament had infringed its obligation of cooperation enshrined under Article 4(3) TEU by not having amended the national law. This breach amounted to a sufficiently serious violation of EU law. In addition, the national administrative body had also contributed to the damages by having rendered its decision on the basis of the national provision contrary to EU law. Moreover, the Okrazhen sad Yambol held the Varhoven kasatsionen sad responsible for the breach, too. In this regard, the regional court argued that in the proceedings on the revision of the administrative decision, the Supreme Court should have referred a preliminary question to the CJEU in order to evaluate the compatibility of the national law with the EU law. Given the circumstances of the case, i.e. the serious doubts regarding such compatibility, the referral should not have been avoided. After finding that all three branches of the State had contributed to the damages incurred, the Okrazhen sad Yambol held them jointly and severally liable for the damages. The Bulgarian court had the possibility to do so, as the claimant rebuked all three branches of government for violation of their rights protected under EU law.

To summarize, the above judgments show that in cases of violation of rights conferred in non-implemented directives, it is sometimes not obvious which branch of the State is responsible for the damages suffered. In fact, the loss of the individual can often be related to several branches, depending on the special circumstances of the case.

 

2.4         The situation of sole breach by one Member State body

 

In order to understand the whole context, it should be emphasized that there exist situations when liability can be clearly attributed to one or another branch of government, notwithstanding the eventual involvement of several branches of government in the breach of EU law. This is so because the infringement of a substantive EU norm does not go together with the infringement of the procedural obligation regarding the application of this EU norm in every situation. Under certain circumstances, Member State bodies are exempt from the obligation to apply the EU norm, e.g. because of the absence of the direct effect of the provision in the case.[69] The following judgments aim to demonstrate this scenario.

 

2.4.1        Responsibility of the legislature

 

Non-implemented directives do not produce direct effect between private parties.[70] If the consistent interpretation of the EU provision with the national rules is not possible either, the breach of provisions in non-implemented directives can only be attributed to the national legislature. The reason is that administrative and judicial bodies do not have any procedural obligation to apply substantive EU norms that do not have direct effect and are contrary to the national rules. Therefore, despite the violation of substantive EU norm, the national administration or judiciary do not infringe any procedural obligation regarding the application of this substantive EU norm.[71] As a result, they cannot be held responsible for violating EU law, even if they seem to be involved in the breach.[72]

A Portuguese judgment on State liability for breach of individual rights conferred by the motor insurance directive illustrates this scenario.[73] In this case the Supremo Tribunal de Justiça (Supreme Court) had to decide whether the claimants were entitled to receive compensation from the State for what they had not received under a previous judgment by the Portuguese court, considered to be contrary to EU law. In its judgment rendered on 27 November 2007, the Supremo Tribunal de Justiça found that such liability should lie with the Member State, since it violated the Treaty by not implementing the relevant directive in question in due time into Portuguese law. An action between a car insurance company and the claimants was the origin of the liability claim against the State. In this first course of action, the Portuguese court ordered the insurance company to pay compensation to the claimants, following a traffic accident that caused the death of their mother. However, as the directive had not yet been implemented into Portuguese law by that time, the court had applied the national rules. As a result, the claimants received less money than they would have been entitled to under the directive. Later, the claimants introduced an action against the State, requesting the difference between the amount that the insurance company had been ordered to pay them and the amount they would have received had the State implemented the directive by the deadline. The Supremo Tribunal de Justiça examined whether the conditions of State liability under EU law had been established. It reached the conclusion that there was a clear failure on the part of the State, as it did not implement the directive in question in due time to the Portuguese law. This breach made the State liable for the damage incurred. A similar decision, on a similar factual and judicial background was rendered by the Tribunal Central Administrativo in 2008.[74] In conclusion, in situations where a non-implemented directive cannot produce direct effect between the parties before the national court, the violation of EU law which can entail liability of the State can only be attributed to the legislature.

 

2.4.2        Responsibility of the judicature

 

On the other hand, there exist situations where the only source of the damage is the act of the judicature. These situations involve breaches, first, when the national court applies an EU provision correctly implemented into the national legal order in a way that is contrary to the EU law; second, when the national court does not comply with its obligation to refer a preliminary question to the CJEU; and third, when the national court infringes a procedural right conferred by the EU law, for example the Article 47 of the Charter on the right to receive a judgment within reasonable time.[75] An example for the first scenario will be offered. The other two situations fall outside the scope of this article and will not be addressed.

The CJEU judgment in Commission v Spain is the first pure judicial infringement in the history of EU law, according to several legal commentators.[76] In fact, it was the first time ever that the CJEU declared that a Member State was in breach of EU law as a result of a national Supreme Court decision. The CJEU delivered its judgment in an infringement action brought by the Commission against Spain for failure to fulfil its obligations under the VAT directive. The Spanish law was harmonized with the Sixth Directive, and the Spanish tax administration applied correctly the CJEU case law in that matter. The violation of the EU law lay clearly in the judgments rendered by the Spanish Supreme Administrative Court. The underlying legal question concerned the qualification of the Spanish Registrars, notably whether they should be considered as public bodies or professionals for VAT purposes. This question determined whether their activities were subject to VAT. The Spanish administration had traditionally qualified the Registrars as professionals, therefore subject to VAT. However, following a judgment by the Supreme Court of Spain which qualified the Registrars as public servants, they were obliged to change their approach and exempt the Registrars’ fiscal services from VAT. As this latter view was contrary to EU law, the Commission brought an infringement action against Spain. It was clear that the infringement was exclusively attributable to the case law of the court of last instance, without any relation to the legislative or administrative powers. The CJEU established the infringement with a brief reference to the precedent judgment in Commission v Italy. However, it did not make any reference to Köbler. According to legal commentators, the fact that the CJEU resolved the case in a five-judge chamber judgment shows that the court clearly refused to fix its doctrine on infringement for judicial errors of national Supreme Courts under Article 258 TFEU.

 

3. Conclusion

 

As it follows from the above examples, the case law confirms that there is no general rule either in the EU law, or in the Member States on which State body to accuse of violation in the event of cumulative breach of EU law by several State bodies. One might even suppose that claimants are not aware of the distinction either, and initiate actions without paying attention to the identity of the defendant. Member State courts, influenced by national traditions and left with no CJEU guidance on the question, then sit on the particular claim without putting the violation in a wider context.

The absence of a rule regarding the question of which Member State body’s liability should be invoked causes inconsistencies. As the gravity of the breach that must be proved in a procedure against the legislature is lower, and against the courts is higher, a party who avails themselves in time of all of the (administrative) remedies at their disposal before raising the liability of the Member State can find themselves in a disadvantaged situation.[77]

In several Member States, the principle of mitigation and the necessity of direct causal link seem to shift the responsibility from the legislature to the law-applying bodies. This favours the application of the Köbler liability and discourages the Francovich claim for a legislative breach; resulting in lowering the individual right protection due to the more severe conditions of State liability.

One may observe that the most claimant-friendly judgments have not specifically determined the responsible branch of government but held the State liable for the violation of EU law. From the perspective of EU law, this can be easily justified by the fact that the obligation of sincere cooperation applies to all Member State bodies. Moreover, the CJEU, recognizing the State unity doctrine, does not interfere with the national attribution of competences. Therefore, I support the view that considering the liability of the State as a whole can be a solution for the problems arising from the inconsistencies between Francovich and Köbler liability. To be able to apply such a stance, it is, however, necessary that the national law foresees the liability of the State and not that of the State bodies. Otherwise, it is the responsibility of the claimant to sue all branches of government that contributed to the breach.

 

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Резюмето на български език на статията четете тук: Казусите Köbler и Francovich: каква е връзката между тях?

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[1] Zsófia Varga, Référendaire, Chambers of Judge Berke, General Court of the European Union. The view and opinions expressed in this article are those of the author.

[2] The Köbler judgment was an extension of the already established State liability doctrine to violations of EU law committed by Member State Supreme Courts. See (CJEU) Case C‑224/01 Köbler, EU:C:2003:513; Joint cases C‑6/90 and C‑9/90 Francovich and others, EU:C:1991:428.

[3] G. Anagnostaras, ‘Not as Unproblematic as You Might Think: The Establishment of Causation in Governmental Liability Actions’ 27 European Law Review (2002), p. 663; G. Anagnostaras, ‘State Liability and Alternative Courses of Action: How Independent Can an Autonomous Remedy Be?’ 21 Yearbook of European Law (2001), p. 355; G. Anagnostaras, ‘The Allocation of Responsibility in State Liability Actions for Breach of Community Law: A Modern Gordian Knot?’ 26 European Law Review (2001), p. 139; G. Anagnostaras, ‘The Principle of State Liability for Judicial Breaches: The Impact of European Community Law’ 7 European Public Law (2001), p. 281.

[4] P. M. Rodríguez, ‘State Liability for Judicial Acts in European Community Law: The Conceptual Weaknesses of the Functional Approach’ 11 Columbia Journal of European Law (2004-2005), p. 614–615.

[5] The research is based on cases related to State liability actions for violation of EU law that have been made publicly accessible either through databases or in other forms such as collections and case law digests in the 28 Member States. The main sources for the identification of national cases are the following:

– bulletin Reflets: Informations rapides sur les développements juridiques présentant un intérêt communautaire ˂http://curia.europa.eu/jcms/jcms/Jo2_7063/˃ [Accessed 25 October 2016]; translation in English of the issues published after 2008 are available at ˂http://www.aca-europe.eu/index.php/en/reflets-en˃ [Accessed 25 October 2016];

– the Commission’s Annual Reports to the European Parliament on Monitoring the Application of EU Law (Annex VI: Application of Community law by national courts: a survey), ˂http://ec.europa.eu/atwork/applying-eu-law/index_en.htm˃ [Accessed 25 October 2016];

– the Internet site of the Associations of the Councils of State and Supreme Administrative Jurisdictions of the European Union, especially the databases Jurifast ˂http://www.aca-europe.eu/index.php/en/jurifast-en˃ [Accessed 25 October 2016] and Dec.Nat ˂http://www.aca-europe.eu/index.php/en/dec-nat-en˃ [Accessed 25 October 2016].

[6] (FI) Korkein oikeus, tuomio, 05/07/2013, A Oy, KKO:2013:58, reported in Reflets nº 3/2013, p. 22; (BG) Okrazhen sad Yambol, Reshenie, 26/11/2015, reported in Reflets no 1/2016, p. 14. A uniform method is applied to refer to national judgments in footnotes.

[7] G. Anagnostaras, 26 ELR (2001), p. 142–143. The original questions are slightly reformulated.

[8] G. Anagnostaras, 26 ELR (2001), p. 139.

[9] G. Anagnostaras, 26 ELR (2001), p. 143.

[10] For a different point of view on the dichotomy of legislative or administrative liability, see G. Anagnostaras, 26 ELR (2001), p. 147.

[11] According to the CJEU’s case law, liability occurs when the Member State body manifestly and gravely disregards the limits of its discretion. See (CJEU) Case C-46/93 and C-48/93 Brasserie du pêcheur and Factortame, EU:C:1996:79; and Case C‑5/94 Hedley Lomas, EU:C:1996:205.

[12] Rodríguez emphasizes that even if the CJEU accepts the rule of State unity in international law, the application of State liability in EU law is diversified. The Köbler judgment clearly shows this, since the CJEU was compelled to admit the specific nature of the judicial function and the legitimate expectations of legal certainty when judging the commission for a sufficiently serious breach. This is why the problems in allocating responsibility to the different State bodies in liability claims are so relevant. See P. M. Rodríguez, 11 CJEL (2005-2004), p. 609.

[13] Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment [1977] OJ L145/1, Article 13; repealed by Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax [2006] OJ L 347/1, Article 135.

[14] Moreover, the liability standard for illegal judicial acts is even higher if we take into account the obligation of Member State courts to refer a preliminary question to the CJEU if there is uncertainty about the interpretation of the substantive EU norm. However, national courts enjoy wide discretion in this regard and – as the experience shows – are exonerated of liability if they motivate their decision.

[15] P. M. Rodríguez, 11 CJEL (2005-2004), p. 617; (CJEU) Case 222/84 Johnston, EU:C:1986:206; Case 222/86 Heylens and Others, EU:C:1987:442.

[16] P. M. Rodríguez, 11 CJEL (2005-2004), p. 615.

[17] G. Anagnostaras, 27 ELR (2002), p. 673–674.

[18] P. M. Rodríguez, 11 CJEL (2005-2004), p. 616–617; see also G. Anagnostaras, 26 ELR (2001), p. 143–144.

In the Case C‑319/96 (Brinkmann Tabakfabriken, EU:C:1998:429), the CJEU accepted that the interposition of the administration between the legislature’s inaction and the loss sustained by the claimant operated as a factor that broke the chain of causation, and linked the damage with the administration that actually gave effect to the contested provision. Anagnostaras states that, even though the Brinkman case was decided with regard to an unimplemented directive, it could be argued that the same solution on the allocation of responsibility in State liability actions can be adopted even outside the factual background of this litigation. The breach consists therefore in the failure of the administration to give effect to the directly effective EU law provision by setting automatically aside any national norm conflicting with it and not in the non-implementation of the directive.

The Köbler case is also paradigmatic of the difficulties in allocating responsibility. The infringement could be attributed to the legislature that enacted the national law allegedly contrary to the EU provision. Since Mr. Köbler asked the national administration to apply EU law, the Federal Ministry was obliged to accept his request in application of the Costanzo case law. Finally, as it was the case, the wrong application by the judgment of the Verwaltungsgerichtshof amounted to an infringement of EC law.

[19] G. Anagnostaras, 7 EPL (2001), p. 298–299; T. Tridimas, ‘State Liability For Judicial Acts – Remedies Unlimited?’ in P. Demaret, I. Govaere, and D. Hanf (eds.), European Legal Dynamics (Peter Lang, 2007), p. 157. Academics expressed the same opinion regarding infringement proceedings: M. Taborowski, ‘Infringement Proceedings and Non-Compliant National Courts’ 49 Common Market Law Review (2012), p. 1908; C. Timmermans, ‘Use of The Infringement Procedure in Cases of Judicial Errors’ in J. W. De Zwaan, et al. (eds.), The European Union: an Ongoing Process of Integration (TMC Asser Press, 2004), p. 161–162.

[20] (CJEU) Case C-129/00 Commission v. Italy, EU:C:2003:656.

[21] M. L. Escudero, ‘Case C-154/08, Commission v. Spain, Judgment of the Court (Third Chamber) of 12 November 2009, Not yet Reported’ 48 Common Market Law Review (2011), p. 236; J. Komárek, ‘Federal Elements in the Community Judicial System: Building Coherence in The Community Legal Order” 42 Common Market Law Review (2005), p. 23–25; C. Timmermans, in J. W. De Zwaan et al. (eds.), The European Union: an Ongoing Process of Integration, p. 161.

[22] M. L. Escudero, 48 CMLR (2011), p. 236–237; B. Hofstötter, Non-compliance of national courts: Remedies in European Community law and beyond (T.M.C. Asser Press, 2005), p. 184.

[23] Hofstötter, Non-compliance of national courts, p. 184, 187; J. Komárek, 42 CMLR (2005), p. 25.

[24] G. Anagnostaras, 7 EPL (2001), p. 298–299; C. Timmermans, in J. W. De Zwaan et al. (eds.), The European Union: an Ongoing Process of Integration, p. 161–162; T. Tridimas, in P. Demaret, I. Govaere, and D. Hanf (eds.), European Legal Dynamics, p.157.

[25] Anagnostaras refers to the so-called ‘réglement écran’ technique, practiced by French courts. These courts argue that, given that the primacy of EU law renders any national law provision which contravenes the requirements of the EU legal order automatically inapplicable, the exercise of administrative activity is deprived of any legal basis when it relies on a legal authorization provided for by a legislative measure adopted in violation of EU law. Thus acting on the basis of a non-existent authorization, the administration should be ordered to make good any loss possibly arising from its illegal conduct. See G. Anagnostaras, 26 ELR (2001), p. 145–149; and the judgment of (FR) Conseil d’État, Assemblée, arrêt, 28/02/1992, Rothmans International France and Société Arizona Tobacco Products et SA Philip Morris France, reported in the Xth Annual report on the monitoring of the application of Community Law – 1992 ([1993] OJ C233/01), 213.

[26] G. Anagnostaras, 21 YEL (2001), p. 363, 374–375; M. Dougan, ‘The Francovich Right to Reparation: Reshaping the Contours of Community Remedial Competence’ 6 European Public Law (2000), p. 111.

[27] In order to avoid confusion, it should be made clear, as Anagnostaras rightly points out, that the mitigation duty can be interpreted from two perspectives. The first one is whether the CJEU’s case-law developed under the doctrine can ever introduce a hierarchy amongst the judicial means provided for by the domestic legal systems. This question was dealt with to a certain extent by Dougan, who arrived to the conclusion that the CJEU had not yet imposed a formal exhaustion of local remedies requirement. However, for Anagnostaras, the fact that damages are generally considered of a subsidiary nature is shown by the relationship of the liability actions against the EU institutions with the legal means available to the affected individuals in the national courts. Thus, the general idea inspiring the EU liability case-law seems to be that, given the existence of several courses of action offering equivalent protection to the affected individuals, the institution of liability proceedings should come last. The second question, which is analysed above, is whether the national legal orders may impose on individuals the obligation to exhaust all available remedies, before they can finally proceed with their public liability actions. See G. Anagnostaras, 21 YEL (2001), p. 363, 374-375; M. Dougan, 6 EPL (2000), p. 111.

[28] G. Anagnostaras, 21 YEL (2001), p. 365.

[29] G. Anagnostaras, 21 YEL (2001), p. 365.

[30] (CJEU) Joint cases C-397/98 and C-410/98 Metallgesellschaft and Others, EU:C:2001:134; Case C‑243/09 Fuß, EU:C:2010:609, noted by J. Tomkin, in 49 Common Market Law Review (2012), p. 1439.

[31] G. Anagnostaras, 21 YEL (2001), p. 366–367. See also (CJEU) Joint cases C-397/98 and C-410/98 Metallgesellschaft and Others, para. 106; Case C‑445/06 Danske Slagterier, EU:C:2009:178, para. 63; Case C‑524/04 Test Claimants in the Thin Cap Group Litigation, EU:C:2007:161, para. 125–126; Case C‑201/05 Test Claimants in the CFC and Dividend Group Litigation, EU:C:2008:239, para. 128–129.

[32] (CJEU) Case C‑243/09 Fuß, para. 72, 80–81, 83–87, 90, 99 and J. Tomkin, 49 CMLR (2012), p. 1430–1431.

[33] In this regard, it is interesting to mention the Unibet judgement, which dealt with the question whether national law had to permit a free-standing action to review the compatibility of the national provision with EU law when there were other legal remedies available to a claimant that would allow that issue to be examined. The CJEU held that in the absence of other remedies, effective judicial protection would not be secured if an applicant could only test the legality of a national rule by breaking it first. See (CJEU) Case C-432/05Unibet, EU:C:2007:163, para. 40–41.

[34] G. Anagnostaras, 21 YEL (2001), p. 366–367.

[35] G. Anagnostaras, 27 ELR (2002), p. 671.

[36] J. Tomkin, 49 CMLR (2012), p. 1439.

[37] (CJEU) Case C‑118/08 Transportes Urbanos y Servicios Generales, EU:C:2010:39, and the case notes by J. M. Pérez de Nanclares, in 47 Common Market Law Review (2010), p. 1847 and C. Plaza, ‘Member States Liability for Legislative Injustice. National Procedural Autonomy and The Principle of Equivalence: Going Too Far in Transportes Urbanos?’ 27 Review of European Administrative Law (2010), p. 35, 45.

[38] (CJEU) Case C‑118/08 Transportes Urbanos y Servicios Generales, para 33, 36, 43–46, 48. Plaza argues that the result might have been different if the Tribunal Supremo had presented all aspects of the national legislation in the request for a preliminary ruling. See C. Plaza, 27 REALaw (2010), p. 48–49.

[39] (CJEU) Case 60/75 Russo EU:C:1976:9; Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral, EU:C:1976:188; Joint cases C‑6/90 and C‑9/90 Francovich and others, para. 41; Case C‑201/02 Wells, EU:C:2004:12, para. 67; Case C‑445/06 Danske Slagterier, para. 31.

[40] G. Anagnostaras, 21 YEL (2001), p. 377, 382; G. Anagnostaras, 26 ELR (2001), p. 153; M. Dougan, 6 EPL (2000), p. 111.

[41] (CJEU) Case C-261/95 Palmisani, EU:C:1997:351, para. 33–40; Case C-568/08 Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others, EU:C:2010:751, para. 92; Case C‑168/15 Tomášová EU:C:2016:602, para. 40.

[42] P. M. Rodríguez, 11 CJEL (2005-2004), p. 617.

[43] According to Scherr, the following Member States applied this condition in 2008: the Czech Republic, Denmark, Germany, Estonia, Spain, Latvia, Luxembourg, Hungary, Austria, Poland, Romania, Finland, and Sweden. See K. M. Scherr, ‘The Principle of State Liability for Judicial Breaches: The Case Gerhard Köbler v. Austria Under European Community Law and From a Comparative National Law Perspective’ (Thesis; European University Institute, 2008), p. 408–409.

[44] (CJEU) Case C‑168/15 Tomášová, para. 40–41, opinion of Advocate General Wahl in Tomášová, C‑168/15, EU:C:2016:260, para. 85–86.

[45] The term ‘joint responsibility’ in the context of violation of EU law was used by Nollkaemper who analysed the joint responsibility between the EU and Member States in his research paper., In her work, De Visser used the expression ‘concurrent liability’ for the same concept. See M. De Visser, ‘The Concept Of Concurrent Liability and Its Relationship With The Principle of Effectiveness: A One-way Ticket Into Oblivion’ 11 Maastricht Journal of European & Comparative Law (2004), p. 47; and A. Nollkaemper, ‘Joint Responsibility Between The EU and Member States For Non-performance of Obligations Under Multilateral Environmental Agreements’, SSRN Scholarly Paper (Social Science Research Network, 2011)

[46] (CJEU) Joint cases C-453/02 and C-462/02 Linneweber and Akritidis EU:C:2005:92.

[47] (DE) Kammergericht Berlin, Urteil, 24/06/2011, 9 U 233/10, reported by T. Lock, ‘Is Private Enforcement of EU Law Through State Liability a Myth? An Assessment 20 Years After Francovich’ 49 Common Market Law Review (2012), p. 1691–1692.

[48] T. Lock, 49 CMLR (2012), p. 1691–1692.

[49] (DE) BGH, Beschluss, 26/04/2012, III ZR 215/11, reported in Reflets nº 2/2012, p. 42.

[50] (CJEU) Case C-283/95 Fischer, EU:C:1998:276; Joint cases C-453/02 and C-462/02 Linneweber and Akritidis.

[51] It may also be relevant whether the taxable person should have paid tax on the basis of an administrative decision or is obliged to comply with the payment obligations directly on the basis of the legislative rule according to a system of tax self-assessment.

[52] (BE) Cour de cassation, 3e chambre, arrêt, 23/06/2008, Fruytier Scierie/Province de Luxembourg et Région wallonne, C.05.0012.F, reported in Reflets nº 3/2008, p. 13.

[53] (ES) Tribunal Supremo, Sala de lo Contencioso-Administrativo, Secciòn 6ª, auto, 17/09/2010, Transportes Urbanos y Servicios Generales S.A.L./Consejo de Ministros, Recurso Nº 153/2007, reported by C. Plaza, 27 REALaw (2010), p. 50.

[54] (CJEU) Case C-204/03 Commission v Spain, EU:C:2005:588.

[55] (CJEU) Case C‑118/08 Transportes Urbanos y Servicios Generales.

[56] (CJEU) Case C‑118/08 Transportes Urbanos y Servicios Generales, para. 36–37, 44, 48.

[57] C. Plaza, 27 REALaw (2010), p. 50.

[58] (DN) Vestre Landsret, dom af 09/11/2005, Cimber Air A/S/Skatteministeriet, TfS 2005.957, reported in the XXIVth Annual report on monitoring the application of EU law (2012) [COM(2007) 398], Annex VI (2006) p. I-41.

[59] (CJEU) Case C‑382/02 Cimber Air, EU:C:2004:534. The judgment ordering the compensation had been handed down in a proceeding in which the preliminary ruling had been pronounced.

[60] (DE) Bundesfinanzhof, 13/01/2005, V R 35/03, Der Betrieb 2005, p. 1093, reported in the XXIIIrd Annual report on monitoring the application of Community law – 2005 [COM(2006) 416], Annex VI, p. I-33; Bundesfinanzhof, 21/04/2005, V R 16/04, Der Betrieb 2005, p. 2005, reported in the XXIIIrd Annual report on monitoring the application of Community law – 2005 [COM(2006) 416], Annex VI, p. I-33.

[61] (CJEU) Case C‑141/00 Kügler, EU:C:2002:473.

[62] (SE) Justitiekanslern, beslut, 06/04/2009, Flexlink AB, reported by F-L. Göransson, ‘Rapport suédois’, in L. Coutron, L’obligation de renvoi préjudiciel à la Cour de justice: une obligation sanctionnée? (Bruyland, 2014), p. 493–495.

[63] (BG) Sofiyski gradski sad, Reshenie, 03/01/2014, Pretsiz-2 EOOD/Varhoven administrativen sad, 1782/2013, reported in Reflets nº 1/2014, p. 16.

[64] (FI) Korkein oikeus, tuomio, 05/07/2013.

[65] (CJEU) Case C-101/00 Tulliasiamies and Siilin, EU:C:2002:505.

[66] (FI) Korkein oikeus, tuomio, 05/07/2013, para. 24.

[67] (BG) Okrazhen sad Yambol, Reshenie, 26/11/2016. The judgment is not definitive.

[68] The Okrazhen sad Yambol referred to the infringement proceedings no 2012/4002.

[69] According to Anagnostaras, there exist only two situations in which the legislature’s conduct is considered beyond doubt as the primary cause of the claimant’s loss. The first is when the damage sustained by the individual emanates directly from a legislative breach without the interposition of an administrative authority. The second situation is when the violation concerns the infringement of a non-directly effective EU norm, and consistent interpretation is not possible either. As there is no obligation imposed upon the administration to give effect to these provisions, it seems reasonable to impute the breach to the legislature, on the basis of its failure to comply with its duties under Article 10 EC [replaced, in substance, by Article 4(3) TEU]. See G. Anagnostaras, 26 ELR (2001), p. 144.

[70] (CJEU) Case 152/84 Marshall, EU:C:1986:84; Case C‑91/92 Faccini Dori, EU:C:1994:292; Case C‑192/94 El Corte Inglés, EU:C:1996:88; Case C‑97/96 Daihatsu Deutschland, EU:C:1997:581.

[71] As Prechal pointed out, the State liability ‘originates from the breach of a Community law obligation and not from a Community law provision itself, such as a Treaty provision or a directive’. See S. Prechal, ‘Member State Liability and Direct Effect: What’s the Difference After All?” 17 European Business Law Review (2006), p. 301.

[72] The situation is more complicated in exclusionary situations. See, for example M. Dougan, ‘When Worlds Collide! Competing Visions of the Relationship Between Direct Effect and Supremacy’ 44 Common Market Law Review (2007), p. 937–940, 944–945; S. Prechal, ‘Does Direct Effect Still Matter?’ 37 Common Market Law Review (2000), p. 1050; W. Van Gerven, ‘Bridging the Gap Between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies?” 32 Common Market Law Review (1995), p. 679.

[73] (PT) Supremo Tribunal de Justiça, Acórdão, 27/11/2007, X/Estado Português, Processo: 07A3954, reported in Reflets nº 2/2008, p. 24, available also in the JuriFast database.

[74] (PT) Tribunal Central Administrativo Sul, 21/02/2008.

[75] The two scenarios envisaged by Rodríguez in this regard are the failure to request a preliminary ruling and the violation of the right to a fair trial, including the undue delay of a process. P. M. Rodríguez, 11 CJEL (2005-2004), p. 617. See also C. Timmermans, in J. W. De Zwaan et al. (eds.), The European Union: an Ongoing Process of Integration, p. 161–162.

[76] (CJEU) Case C-154/08 Commission v Spain, EU:C:2009:695. For detailed analysis, see M. L. Escudero, 48 CMLR (2011); M. Taborowski, 49 CMLR (2012), p. 1891–1892.

[77] The legislature is ‘automatically’ responsible for the non-implementation of a directive, as the violation of Article 288 TFEU is considered as sufficiently serious breach by itself. However, in case of a failure by the administration to apply the directly effective provisions of a non-implemented directive, a ‘sufficiently serious’ breach must be proved. As for the liability of the national courts, only a manifest and exceptional violation triggers liability.