Abstract
In light of the considerable uncertainty inherent in the damages requirement in the current public procurement legislation, the CJEU is the institution that will have to delineate EU requirements on damages in this field. This chapter states the main general EU law doctrines developed to adjudicate damages by the CJEU. It first surveys the requirements of effectiveness and equivalence, effective judicial protection and the notion of procedural autonomy. Secondly, it examines the availability of damages under the doctrine of Member State liability.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Parts of this chapter are based on H Schebesta, ‘Does the National Court Know European Law? A Note on Ex Officio Application after Asturcom’ (2010) 18 European Review of Private Law, 847 and H Schebesta ‘Procedural theory in EU law’ in K Purnhagen and P Rott (eds), Varieties of European Economic Regulation (New York, Springer, 2014). The latter essay explores the effect of procedural autonomy on procedural justice in EU law.
- 2.
K Lenaerts, ‘The Rule of Law and the Coherence of the Judicial System of the European Union’ (2007) 44 Common Market Law Review 1625, p 1645.
- 3.
Case C-6/64 Flaminio Costa v E.N.E.L. [1964] ECR 00585.
- 4.
JS Delicostopoulos, ‘Towards European Procedural Primacy in National Legal Systems’ (2003) 9 European Law Journal 599, p 599.
- 5.
Case C-33/76 Rewe-Zentralfinanz AG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 01989, para 5.
- 6.
It hence stipulates that EU law-based claims must be treated as favorably as national claims. Although it is basically a non-discrimination principle, one can read a more positive obligation into the requirement of equivalence than into the essentially negative assertion of non-discrimination. I am grateful to Prof. HW Micklitz for this remark.
- 7.
For a discussion, see M Dougan, National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation (Oxford, Hart Publishing, 2004), p 24.
- 8.
See for example S Seyr, Der effet utile in der Rechtsprechung des EuGH (Berlin, Duncker & Humblot, 2008); M Ross, ‘Effectiveness in the European legal order(s): Beyond supremacy to constitutional proportionality’ (2006) 31 European Law Review 476; and T Tridimas, The general principles of EU law (Oxford, Oxford University Press, 2006).
- 9.
V Trstenjak & E Beysen, ‘European Consumer Protection Law: Curia Semper Dabit Remedium?, (2011) 48 Common Market Law Review 95, p 101 (noting that ‘[t]he case law of the ECJ has, however, been marked by an important evolution in the application of the effectiveness test.’)
- 10.
A Ward, Judicial Review and the Rights of Private Parties in EU Law (Oxford, Oxford University Press, 2007).
- 11.
By way of example, Dougan, National Remedies Before the Court of Justice, above n 7, pp 32–33.
- 12.
In Keck, the Court distinguished product requirements from selling arrangements. Under the internal market logic, product requirements would be subject to court scrutiny, while mere selling arrangements (such as opening hours and the like) would be accepted provided that the two conditions set out by the Court were met Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097.
- 13.
A Ward, ‘Do Unto Others as You Would Have Them Do Unto You: Willy Kempter and the Duty to Raise EC Law in National Litigation’ (2008) 33 European Law Review 739.
- 14.
ibid, p 751.
- 15.
M Bobek, ‘Why There is No Principle of “Procedural Autonomy” of the Member States’, in HW Micklitz & B de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Intersentia, 2011), the contribution is also notable for being outspokenly critical of the recent developments of procedural autonomy.
- 16.
C Timmermans, Presentation ‘Limits Imposed by EU law to Member States’ Freedom of Action in Fields not Regulated by EU law’, Robert Schuman Centre for Advanced Studies, Florence (13 April 2011).
- 17.
Timmermans’ conceptual understanding differentiates between (1) effet utile; (2) effectiveness under the Rewe/Comet formula in what we have called an objective and subjective right version; and (3) judicial protection. This position, in the light of the requirement of first entering the scope of EU law, seems untenable, as the autonomous application of principles of judicial protection is currently not possible. This distinction fails to account for the difference between (1) and (2).
- 18.
R Widdershoven & A Prechal, ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’ (2011) 4 Review of European Administrative Law 31.
- 19.
See W van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 Common Market Law Review 501, p 504.
- 20.
M Ross, ‘Effectiveness in the European Legal Order(s): Beyond Supremacy to Constitutional Proportionality’ (2006) 31 European Law Review 476, p 479
- 21.
This is not to say that using effectiveness as a standard does not imply a certain trade-off between different values. However, the inherent balancing does not surface in a reasoned form.
- 22.
The principle of effectiveness is a relational term, expressing the relation between ‘Ist-und Sollensleistung’.
- 23.
The acceptance of the terms subjective and objective for the indication that the protected interest can either be specific or general varies across legal traditions. The distinction is meant similarly to the French distinction between ‘public policy rules designed to order society (règles d’ordre public de direction), adopted in the general interest and which the court may raise of its own motion, and public policy rules designed to protect specific interests (règles d’ordre public de protection), adopted in the interest of a particular category of persons and which may be relied upon only by persons belonging to that category’. See Case C-429/05 Rampion and Godard [2007] ECR I-08017, para 58.
- 24.
Timmermans presentation ‘Limits Imposed by EU law to Member States’ Freedom of Action in Fields not Regulated by EU law’, above n 16.
- 25.
J Engström, The Europeanisation of Remedies and Procedures through Judge-made Law – Can a Trojan Horse achieve Effectiveness? Experiences of the Swedish Judiciary (European University Institute, 2009), Tome I, p 48.
- 26.
van Gerven, ‘Of Rights, Remedies and Procedures’, above n 19, p 521.
- 27.
Joined Cases C-430/93 and C-431/93 Van Schijndel / Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705, para 19; Case C-312/93 Peterbroeck, Van Campenhout & Cie / Belgian State [1995] ECR I-4599, para 14.
- 28.
M Hoskins, ‘Tilting the Balance: Supremacy and National Procedural Rules’ (1996) 21 European Law Review p 376 (observing that the Court of Justice ‘departed from the orthodox principle of procedural autonomy’). However, he criticizes the approach as being too vague and prefers effectiveness as a more useful standard in the national court.
- 29.
Joined Cases C-295/04 to C-298/04 Manfredi and others [2006] ECR I-06619.
- 30.
For strong criticism on the use of the ‘effectiveness’ limb in general, see Ward, ‘Do unto others as you would have them do unto you’, above n 13, p 753. According to her, effectiveness as a standard is too indeterminate, and the contextual approach too unstructured. She therefore proposes to streamline the CJEU’s jurisprudence with Article 6(1) ECHR case law, according to which ‘non-discriminatory temporal limitations to the enforcement of Community law, at national level, would only need to be disapplied, under EC law, if they struck at the “very essence” of right of access to a court, failed to pursue a legitimate aim, and were disproportionate.’ In my reading of the case, all of these elements are already implicit in the effectiveness under the Peterbroeck test, with the possible exception of the ‘very essence’ element.
- 31.
In procedural theory the merely ‘servant function’ of procedural law vis-à-vis substantive law is often described as the accuracy view. I discuss this aspect in greater detail in ch 14.
- 32.
P Haapaniemi, ‘Procedural Autonomy: A Misnomer?’ in L Ervo et al (eds), Europeanization of Procedural Law and the New Challenges to Fair Trial (Groningen, Europa Law Publishing, 2009), p 98.
- 33.
Case C-246/09 Bulicke [2010] ECR I-7003.
- 34.
See S Prechal and K Cath, ‘The European Acquis of Civil Procedure: Constitutional Aspects’ (2014) 19 Uniform Law Review, pp 179–198 (arguing that the test for justifications for ‘restrictions on the principle of effective judicial protection is stricter than the more lenient test of the ‘procedural rule of reason’ employed to justify restrictions on “Rewe effectiveness”’. This remains to be seen in practice.)
- 35.
Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1663.
- 36.
Case C-276/01 Steffensen [2003] ECR I-3735, para 77.
- 37.
One of the most important recent cases being Case C-432/05 Unibet (London) Ltd. and Unibet (International) Ltd. v Justitiekanslern [2007] ECR I-2271.
- 38.
For a discussion of Article 47 in relation to private law, and discussing the relevance of ‘prohibitions to interfere’ and ‘positive claims to protection’ with respect to fundamental rights, see C Mak, ‘Rights and Remedies: Article 47 EUCFR and Effective Judicial Protection in European Private Law Matters’ in HW Micklitz (ed), Constitutionalization of European Private Law (Oxford, Oxford University Press, 2014), pp 236–258.
- 39.
See for an ‘official’ comparison of the texts of the ECHR and the Charter Praesidium of the European Convention, Explanations relating to the Charter, OJ C 303 (14.12.2007), pp 29–30.
- 40.
Joined Cases C-317-320/08 Alassini [2010] ECR I-2213.
- 41.
Case C-63/08 Pontin [2009] ECR I-10467, para 44.
- 42.
Case C-268/06 Impact [2008] ECR I-2483, paras 47-48
- 43.
Case C-12/08 Mono Carstyling, ECLI:EU:C:2009:466.
- 44.
S Prechal, ‘Community Law in National Courts: The Lessons from Van Schijndel’ (1998) Common Market Law Review 681, p 682, fn 3.
- 45.
Also defended by Prechal, ibid, p 681.
- 46.
Advocate General Tesauro CN Kakouris, ‘Do the Member States Possess Judicial Procedural “Autonomy”?’ (1997) Common Market Law Review 1389.
- 47.
Statement by Cavallini, quoted in Kakouris, ibid.
- 48.
Haapaniemi dates the term back to the commentator Joel Rideau in 1972 and a textbook released thereafter. See Haapaniemi, ‘Procedural Autonomy: A Misnomer?’, above n 32, 89.
- 49.
M Tonne, Effektiver Rechtsschutz durch staatliche Gerichte als Forderung des europäischen Gemeinschaftsrechts (Köln, Heymanns, 1997), p 315.
- 50.
Kakouris, ‘Do the Member States Possess Judicial Procedural “Autonomy”?’, above n 46, p 1389.
- 51.
van Gerven, ‘Of Rights, Remedies and Procedures’, above n 19, p 501.
- 52.
In 1997 Kakouris was still able to write that the Court had never used the notion. See Kakouris, ‘Do the Member States Possess Judicial Procedural “Autonomy”?’, above n 46, p 1389.
- 53.
Case C-201/02, The Queen on the application of Delena Wells and Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723.
- 54.
Curia website, search for text ‘procedural autonomy’ in the category of judgments only (published and unpublished) produced 114 results, retrieved April 2015.
- 55.
P Haapaniemi in A Rösenkotter & T Wuersig, The Impact of the Lisbon Treaty in the Field of Public Procurement (European Parliament, 2010), p 114.
- 56.
Commission Staff Working Document, Annex to the Proposal for a Directive of the European Parliament and of the Council amending Council Directives 89/665/EEC and 92/13/EEC CEE with regard to improving the effectiveness of review procedures concerning the award of public contracts, Impact Assessment Report – Remedies in the field of public procurement, SEC(2006) 557 (4 May 2006), p 12 [hereinafter ‘Impact Assessment Report on Remedies’].
- 57.
And potentially, through the bridge of the Bergaderm-judgment, Institutional liability also, see Case C-352/98 P Bergaderm and Goupil/Commission [2000] ECR I-5291.
- 58.
C-479/93 Andrea Francovich v Italian Republic [1995] ECR I-03843, para 35 (concerning the failure of the legislature to act: ‘It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty.’).
- 59.
In contrast to Francovich, Brasserie concerned a positive violation of Community law rather than an omission.
- 60.
Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte Factortame and others [1996] ECR I-1029, para 31. In this respect European law resembles international law whereby the State is taken as a unitary legal entity which is liable as a whole, rather than the liability resting with any of its constituent parts. Compare also Art 27 of the Vienna Convention on the Law of Treaties.
- 61.
A Biondi & M Farley, The right to damages in European Law (Alphen aan den Rijn, Kluwer Law International, 2009), 32. Due to the national variations regarding rights and interests, one must keep in mind that Community law operates on an assumption of rights that is not contingent upon national law interpretations thereof.
- 62.
S Prechal, Directives in EC Law (Oxford, Oxford University Press, 2005).
- 63.
Case C-222/02 Peter Paul, Cornelia Sonnen-Lütte and Christel Mörkens v Bundesrepublik Deutschland [2004] ECR I-09425.
- 64.
For example M Tison, ‘Do not attack the watchdog! Banking supervisor’s liability after Peter Paul’ (2005) 42 Common Market Law Review, pp. 639–675. See also N Reich, ‘The Interrelation between Rights and Duties in EU Law: Reflections on the State of Liability Law in the Multilevel Governance System of the Union: Is There a Need for a More Coherent Approach in European Private Law?’ (2010) 29 Yearbook of European Law, pp 112–163.
- 65.
Regarding objectivity of liability one may distinguish the following dimensions – objectivity in terms of a protected interest is not necessary, a mere breach suffices. However, also regarding the dimension of fault and subjective liability, the term of objective liability is sometimes used to denote the difference in relation to fault between an objective legal fault perspective and a subjective moral fault perspective. The question of fault is examined at a later stage.
- 66.
MP Granger, ‘National Applications of Francovich and the Construction of a European Administrative Jus Commune’ (2007) 32 European Law Review 157.
- 67.
As of April 2015.
- 68.
The differences in linguistic versions in this respect have been used in order to cast doubt regarding the nature of this condition – the literal English translation of the concepts used in French and German (violation suffisamment characterise, hinreichend qualifiziert) would be a sufficiently qualified breach. For details see J Beatson & T Tridimas, New Directions in European Public Law (Oxford, Hart Publishing, 1998), p 43, referring to D Edward & W Robinson, ‘Is there a Place for Private Law Principles in Community Law?’, in T Heukels & A McDonnell (eds), The Action for Damages in Community Law (The Hague, Kluwer Law International, 1997). It is tempting to follow the distinction under English national law giving this condition an inherent connection with legal factual situations. However, from a formal point of view all linguistic versions are equally authentic. The legal concept of a sufficiently serious breach is filled with European, rather than national meaning.
- 69.
A discussion on the merits in relation to immunities for particular parts of the State is omitted here.
- 70.
Which was clearly established in Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239.
- 71.
Case C-173/03 Traghetti del Mediterraneo SpA v Italy [2006] ECR I-5204.
- 72.
C-318/13 X [2014] ECLI:EU:C:2014:2133.
- 73.
C-429/09 Fuß v Stadt Halle [2010] ECR I-12173, para 45.
- 74.
Judgments in Joined Cases 83 and 94/76, 4, 15 and 40/77 Bayerische HNL Vermehrungsbetriebe GmbH & Co. KG and others v Council and Commission of the European Communities [1978] ECR 01209, para 6; Brasserie, above n 60; and Factortame, above n 60, para 55.
- 75.
See Brasserie and Factortame, above n 60.
- 76.
Judgment in The Queen v Secretary of State for Trade and Industry, ex parte British Telecommunications plc, Case C-302/94, ECLI:EU:C:1996:485.
- 77.
ibid, para 40.
- 78.
See also the Brinkmann case, in which Denmark had classified tobacco roles erroneously as a ‘cigarette’ in its implementation. Since other Member States had followed the same interpretation, Denmark was said to have acted in good faith, and was not found liable. See Case C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-05255. See also Biondi & Farley, The right to damages in European law, above n 61, p 50.
- 79.
IB Lee, ‘In Search of a Theory of State Liability in the European Union’ (1999) 9/99 Harvard Jean Monnet Working Paper; Biondi & Farley, The right to damages in European law, above n 61, pp 53–55; and Granger, ‘National applications of Francovich’, above n 66, p 157.
- 80.
Case 5/94 R. v Ministry of Agriculture, Fisheries, and Food (MAFF), ex parte Hedley Lomas Ltd [1996] ECR I-02553.
- 81.
Ward, Judicial Review and the Rights of Private Parties in EU Law, above n 10, p 230.
- 82.
C-318/13 X [2014] ECLI:EU:C:2014:2133.
- 83.
Biondi & Farley, The right to damages in European law, above n 61, p 47.
- 84.
Hedley Lomas, above n 80.
- 85.
ibid, para 28.
- 86.
Case C-470/03 A.G.M.-COS.MET Srl v Suomen valtio and Tarmo Lehtinen [2007] ECR I-02749, para 82.
- 87.
Similarly, in Larsy II, Belgium was held liable for the simple misapplication of a social security regulation despite being in possession of all the relevant information. Case C-118/00 Gervais Larsy v Institut national d’assurances sociales pour travailleurs indépendants (INASTI) [2001] ECR I-05063.
- 88.
Both Francovich and Brasserie under German law failed to give the claimant a right to compensation on grounds of lacking causality. Contrary to this, consider the Factortame judgment, in which causality was easily established, leading to a settlement of GBP 55 million, see Biondi & Farley, The right to damages in European law, above n 61, p 57; and Granger, ‘National applications of Francovich’, above n 66, p 157.
- 89.
Objective liability in the sense of independence no-fault liability.
- 90.
Granger, ‘National applications of Francovich’, above n 66, p 157.
- 91.
See, eg Case C-140/97 Walter Rechberger, Renate Greindl, Hermann Hofmeister and Others v Republik Österreich [1999] ECR I-03499.
- 92.
COS.MET, above n 86, para 84.
Bibliography
Biondi, A & Farley, M (2009) The right to damages in European Law (Alphen aan den Rijn, Kluwer Law International).
Beatson, J & Tridimas, T (1998) New Directions in European Public Law (Oxford, Hart Publishing).
Bobek, M (2011) ‘Why There is No Principle of “Procedural Autonomy” of the Member States’, in HW Micklitz & B de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Intersentia).
Delicostopoulos, JS (2003) ‘Towards European Procedural Primacy in National Legal Systems’ 9 European Law Journal 599.
Dougan, M (2004) National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation (Oxford, Hart Publishing).
Edward, D & Robinson, W (1997) ‘Is there a Place for Private Law Principles in Community Law?’, in T Heukels & A McDonnell (eds), The Action for Damages in Community Law (The Hague, Kluwer Law International).
Engström, J (2009) The Europeanisation of Remedies and Procedures through Judge-made Law – Can a Trojan Horse achieve Effectiveness? Experiences of the Swedish Judiciary (European University Institute), Tome I.
Granger, MP (2007) ‘National Applications of Francovich and the Construction of a European Administrative Jus Commune’ 32 European Law Review 157.
Haapaniemi, P (2009) ‘Procedural Autonomy: A Misnomer?’ in L Ervo et al (eds), Europeanization of Procedural Law and the New Challenges to Fair Trial (Groningen, Europa Law Publishing).
Haapaniemi, P (2010) in A Rösenkotter & T Wuersig, The Impact of the Lisbon Treaty in the Field of Public Procurement (European Parliament).
Hoskins, M (1996) ‘Tilting the Balance: Supremacy and National Procedural Rules’ 21 European Law Review 376.
Kakouris, CN (1997) ‘Do the Member States Possess Judicial Procedural “Autonomy”?’ Common Market Law Review 1389.
Lee, IB (1999) ‘In Search of a Theory of State Liability in the European Union’ 9/99 Harvard Jean Monnet Working Paper.
Lenaerts, K (2007) ‘The Rule of Law and the Coherence of the Judicial System of the European Union’ 44 Common Market Law Review 1625.
Mak, C (2014) ‘Rights and Remedies: Article 47 EUCFR and Effective Judicial Protection in European Private Law Matters’ in HW Micklitz (ed), Constitutionalization of European Private Law (Oxford, Oxford University Press).
Prechal, S (2005) Directives in EC Law (Oxford, Oxford University Press).
Prechal, S and Cath, K (2014) ‘The European Acquis of Civil Procedure: Constitutional Aspects’ 19 Uniform Law Review 179.
Reich, N (2010) ‘The Interrelation between Rights and Duties in EU Law: Reflections on the State of Liability Law in the Multilevel Governance System of the Union: Is There a Need for a More Coherent Approach in European Private Law?’ 29 Yearbook of European Law 112.
Ross, M (2006) ‘Effectiveness in the European Legal Order(s): Beyond Supremacy to Constitutional Proportionality’ 31 European Law Review 476.
Schebesta, H ‘Does the National Court Know European Law? A Note on Ex Officio Application after Asturcom’ (2010) 18 European Review of Private Law 847.
Schebesta, H (2014) ‘Procedural theory in EU law’ in K Purnhagen and P Rott (eds), Varieties of European Economic Regulation (New York, Springer).
Seyr, S (2008) Der effet utile in der Rechtsprechung des EuGH (Berlin, Duncker & Humblot).
Timmermans, C (2011) Presentation ‘Limits imposed by EU law to Member States’ Freedom of Action in Fields not Regulated by EU law’, Robert Schuman Centre for Advanced Studies, Florence.
Tison, M (2005) ‘Do not attack the watchdog! Banking supervisor's liability after Peter Paul’ 42 Common Market Law Review 639.
Tonne, M (1997) Effektiver Rechtsschutz durch staatliche Gerichte als Forderung des europäischen Gemeinschaftsrechts (Köln, Heymanns).
Tridimas, T (2006) The general principles of EU law (Oxford, Oxford University Press).
Trstenjak, V & Beysen, E (2011) ‘European Consumer Protection Law: Curia Semper Dabit Remedium?’ 48 Common Market Law Review 95.
van Gerven, W (2000) ‘Of Rights, Remedies and Procedures’ 37 Common Market Law Review 501.
Ward, A (2007) Judicial Review and the Rights of Private Parties in EU Law (Oxford, Oxford University Press).
Ward, A (2008), ‘Do Unto Others as You Would Have Them Do Unto You: Willy Kempter and the Duty to Raise EC Law in National Litigation’ 33 European Law Review 739.
Widdershoven, R & Prechal, A (2011) ‘Redefining the Relationship between “Rewe-effectiveness” and Effective Judicial Protection’ 4 Review of European Administrative Law 31.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2016 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Schebesta, H. (2016). The CJEU’s Approach to Damages Under General EU Law. In: Damages in EU Public Procurement Law. Studies in European Economic Law and Regulation, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-23612-4_3
Download citation
DOI: https://doi.org/10.1007/978-3-319-23612-4_3
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-23611-7
Online ISBN: 978-3-319-23612-4
eBook Packages: Law and CriminologyLaw and Criminology (R0)