12. Secondary Rights and Remedies

Case C-259/87 Greece v Commission [1990] ECR 2845 (Summ.pub.).

Case T-171/99 Corus UK v Commission [2001] ECR II-2967, para 55; and Joined Cases T-44/01, T-119/01 and T-126/01 Vieira v Commission [2003] ECR II-1209, para 86.

Cf., e.g., Dougan (1998), p. 234.

Cf. Case 18/63 Wollast v EEC [1964] ECR 85; Case 110/63 Willame v Commission [1965] ECR 649; Case 36/72 Meganck v Commission [1973] ECR 527; and Case 71/72 Kuhl v Council [1973] ECR 705.

Case 199/82 San Giorgio [1983] ECR 3595, para 12. Cf., inter alia, Joined Cases C-192 to C-218/95 Comateb [1997] ECR I-165, para 20; Case C-188/95 Fantask [1997] ECR I-6783, para 38; Joined Cases C-10/97 to C-22/97 IN. CO. GE. 90 and Others [1998] ECR I-6307, para 24; Joined Cases C-397 and C-410/98 Metallgesellschaft and Hoechst [2001] ECR I-1727, para 84; Case C-264/08 Direct Parcel Distribution Belgium [2010] ECR I-731, para 45; Case C-398/09 Lady & Kid [2011] ECR I-7375, para 17; Case C-94/10 Danfoss [2011] ECR I-9963; and Case C-591/10 Littlewoods [2012] (OJ 2012 C 295, p. 5) (EU:C:2012:478), para 28.

Cf. Sect. 19.​2.​2.

Cf., also, Milutinović (2010), p. 58.

Cf., e.g., Case C-591/10 Littlewoods [2012] (OJ 2012 C 295, p. 5) (EU:C:2012:478), paras 24–26; Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753, para 205; and Joined Cases C-397/98 and C-410/98 Metallgesellschaft and Hoechst [2001] ECR I-1727, paras 87–89.

Some commentators still suggest that claims for the recovery of unlawfully levied charges/taxes are to be considered under national law, which in turn must be tested against the principles of equivalence and effectiveness. It has, for instance, been suggested that it was ‘remarkable that in the Lady & Kid case the ECJ did not explicitly refer to the procedural autonomy or to the principles of equivalence and effectiveness’ de Vos (2012), p. 109. Yet, as the Court of Justice discussed and sought to settle how ‘[t]he rules of European Union law on recovery of sums wrongly paid must be interpreted’ (Case C-398/09 Lady & Kid [2011] ECR I-7375, operative part), it is submitted that the judgment does not deal with national procedural law; instead, it is a debate at the level of Union law. Advocate General Cruz Villalón had a more restrictive approach than the Court, as he seemed to suggest that the case should be solved within the borders of national law. This was based on the fact that the Court at times ‘extends the role of the national legislature not only to the formal conditions of repayment, but also to its substantive requirements’ (Opinion of Advocate General Cruz Villalón in Case C-398/09 Lady & Kid [2011] ECR I-7375, para 24).

Case C-242/95 GT-Link A/S v De Danske Statsbaner (DSB) [1997] ECR I-4449, paras 58–59.

Cf. Craig (2012a), p. 698.

Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, cf., in particular, paras 8–9.

Milutinović (2010), p. 159.

Case T-166/98 Cantina sociale di Dolianova and Others v Commission [2004] ECR II-3991, para 84, case appealed and set aside on admissibility, cf. Case C-51/05 P Commission v Cantina sociale di Dolianova and others [2008] ECR I-5341.

Cf. Williams (2010), p. 559.

Dougan (1998), pp. 235–236.

Case 33/76 Rewe v Landwirtschaftskammer für das Saarland [1976] ECR 1989.

Cf. Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45, corrigendum [2004] OJ L 195, p. 16), Article 13.

Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19). Cf., now, Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).

Cf., e.g., Koziol (2012), pp. 65–66.

Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29).

Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56), cf. Article 3(3).

Cf. van Dam (2013), p. 210.

Case 4/69 Alfons Lütticke v Commission [1971] ECR 325.

Case 4/69 Alfons Lütticke v Commission [1971] ECR 325, para 10.

Toth (1975), p. 692.

Joined Cases 9 and 12/60 Vloeberghs v High Authority [1961] ECR 199.

Cf. Stuart (1975), p. 508.

Lagrange (1966), p. 26.

Joined Cases 9 and 12/60 Vloeberghs v High Authority [1961] ECR 199, 216.

Joined Cases 9 and 12/60 Vloeberghs v High Authority [1961] ECR 199, 216–217.

Cf., e.g., Rebhahn (2008), p. 179; and Stuart (1975), p. 508.

Council Regulation 768/68 of 25 May 1968 establishing the general rules for the denaturation of sugar used for animal feed (OJ 1968 L 43, p. 12).

Cf. Case 114/76 Bela-Mühle Josef Bergmann KG v Grows-Farm GmbH & Co. KG [1976] ECR 1211; Case 116/76 Granaria v Hoofdproduktschap voor Akkerbouwprodukten [1976] ECR 1247; and Joined Cases 119 and 120/76 Kurt A. Becher v Hauptzollamt Bremen-Nord and Ölmühle Hamburg AG v Hauptzollamt Hamburg-Waltershof [1976] ECR 1269.

Case 4/69 Alfons Lütticke v Commission [1971] ECR 325.

Case 145/83 Adams v Commission [1985] ECR 3539.

Cf., particularly, Case 145/83 Adams v Commission [1985] ECR 3539, para 53.

A particularity is that the Court of Justice laid down in Case 25/62 Plaumann v Commission [1963] ECR 95 that claims for damages due to unlawful decisions require a decision that has been declared invalid. Due to the strict rules on locus standi for individuals seeking to obtain annulment of decisions, this may have led to few attempted damages claims. The Court was not consistent on the question. While this requirement was not upheld in Case 4/69 Alfons Lütticke v. Commission [1971] ECR 325, it was in Case 96/71 R&V Haegeman [1972] ECR 1014, but the Court ultimately returned to the Lütticke point of view in Case 43/72 Merkur [1973] ECR 1055. As to the current situation, the prevailing view is that ‘where the individual is the direct addressee of the act, and in reality only seeks the withdrawal of the act, then an action for damages will be declared inadmissible, unless or until the applicant has first brought an action for annulment’ (Biondi and Farley 2009, p. 99). What remains then is not a general requirement of exhaustion of other remedies, but rather a safeguard against ‘abuse of process’, cf. Gutman (2011), p. 704.

Cf. Case T-390/94 Schröder and Thamann v Commission [1997] ECR II-501, para 54. Appeal dismissed in Case C-221/97 P Schröder and Thamann v Commission [1998] ECR I-8255.

Cf. Case T-108/94 Candiotte v Council [1996] ECR II-87, para 32.

Cf. Hilson (2005), pp. 681 and 683 (footnote 44).

Cf. Aalto (2011), pp. 86–87.

Cf., inter alia, Bebr (1992), pp. 575–576.

Cf. Tridimas (2001), p. 322.

Cf. Case T-178/98 Fresh Marine v Commission [2000] ECR II-3331, appealed, cf. Case C-472/00 P Fresh Marine v Commission [2003] ECR I-7541; Joined Cases T-198/95, 171/96, 230/97, 174/98 and 225/99 Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II-1975; and Case T-155/99 Dieckmann & Hansen [2001] ECR II-3143, appealed, but dismissed, cf. order of the Court of Justice 6 February 2003 in Case C-492/01 Dieckmann & Hansen (Unpub.) (OJ 2002 C 44, p. 8).

Camar was an importer of bananas from Somalia, who had asked the Commission to establish transitional measures in order to offset the supply problems due to the civil war in Somalia in 1990. The Court of First Instance ruled for Camar. A point was made that after the tropical storms/hurricanes Debbie, Iris, Luis and Marilyn had hit the Caribbean in 1994–1995, several regulations had been adopted to increase the tariffs for certain Caribbean islands. Arguments of equality were thus seen to support Camar’s claim. The Court of First Instance had imposed liability by referral to mere illegality on the part of the Commission. While the Court of Justice noted that this was an error in law, the facts showed that the Commission had manifestly and gravely disregarded the limits of its discretion (Case C-312/00 P Camar and Tico [2002] ECR I-11355, paras 57–60). Hence, in that case, applying the new Bergaderm criteria led to the same outcome.

Cf. Craig (2012a), p. 684.

Cf., e.g., Opinion of Advocate General Legér in Case C-224/01 Köbler [2003] ECR I-10239, para 126, with reference to Opinion of Advocate General Tesauro in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029, paras 71–72.

Prechal (2001), p. 50.

Cf. Tridimas (2001), p. 327.

With references to Case C-352/98 P Bergaderm [2000] ECR I-5291, para 42; C-282/05 P Holcim [2007] ECR I-2941, para 47; and Case T-47/03 Sison I [2007] ECR II-73 (Summ.pub.), para 234.

With references to Case C-282/90 Vreugdenhil v Commission [1992] ECR I-1937, para 19; and Case C-390/95 P Antillean Rice Mills and Others v Commission [1999] ECR I-769, paras 58 and 59.

With reference to Case T-4/01 Renco v Council [2003] ECR II-171, para 60.

Council of Europe Recommendation No. R(80)2 of the Committee of Ministers Concerning the Exercise of Discretionary Powers by Administrative Authorities, II.4.

Case T-489/93 Unifruit Hellas v Commission [1994] ECR II-1201, appealed, cf. Case C-51/95 P Unifruit Hellas v Commission [1997] ECR I-727.

It is generally difficult to successfully claim breach of the principle of proportionality, cf. Joined Cases 63-69/72 Hansamühle [1973] ECR 1229; Case T-43/98 Emesa Sugar [2001] ECR II-3519; and Case T-16/04 Arcelor [2010] ECR II-211. As an example, the principle of proportionality was invoked in Case 281/84 Zuckerfabrik Bedburg [1987] ECR 49. This case concerned the system of pre-single market Monetary Compensatory Amounts which were supposed to offset price differences stemming from the fact that intervention prices were set in agricultural exchange rates (the ‘green pounds’), which did not reflect market rates. The Council lowered the exchange rates for sugar, with the changes taking effect on 1 January 1985. The sugar marketing year being from 1 July to 30 June, sugar manufacturers were obliged to pay sugar beet producers the higher rate (as the sugar beet crops were 1984 crops), while receiving for their sugar only the lower price resulting from the new exchange rate. The Court of Justice found that the principle of proportionality had not been violated (Zuckerfabrik Bedburg, para 38).

Cf., on this topic, Craig (2010).

Case 39/72 Commission v Italy [1973] ECR 101, para 11.

Cf. Court of Justice, Suggestions of the Court of Justice on European Union, in: European Communities, Commission, Reports on European Union, Bulletin of the European Communities 9/75, 18.

Case 60/75 Russo v Aima [1976] ECR 45, para 9.

One reason for this ambiguity is that the Court of Justice referred to how ‘under Community rules an individual producer may claim that he should not be prevented from obtaining a price approximating to the target price and in any event not lower than the intervention price’ (Case 60/75 Russo v Aima [1976] ECR 45, para 6). This may be interpreted as an acknowledgement of how individuals such as the applicant (Mr Russo) indeed held a relevant right flowing from Economic Community law, and it was in this case clear that the same right had been infringed. It would then give the impression that the case was merely half-solved if no concrete consequences concerning damages claims could be drawn from Community law itself.

Cf., e.g., Greaves and Reid (2007), p. 221; and Colomer (2010), pp. 406–407.

Cf. the Commission’s Seventh Annual Report to the European Parliament on Commission Monitoring of the Application of Community Law 1989 (OJ 1990 C 232, p. 1).

Bourgoin v Ministry of Agriculture, Fisheries and Food [1987] QB 716.

European Commission, Intergovernmental Conferences: Contributions by the Commission, Bulletin of the European Communities, Supplement 2/91, 152 cf. 153–154.

Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283, p. 23). Cf., now, Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (Codified version) (OJ 2008 L 283, p. 36).

Case 22/87 Commission v Italy [1989] ECR 143.

Cf., inter alia, Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029; Case C-392/93 British Telecom [1996] ECR I-1631; Case C-5/94 Hedley Lomas [1996] ECR I-2553; Joined Cases C-178, 179, 188, 189 and 190/94 Dillenkofer [1996] ECR I-4845; Joined Cases C-283, 291 and 292/94 Denkavit [1996] ECR I-5063; Case C-66/95 Sutton [1997] ECR I-2163; Case C-127/95 Norbrook Laboratories [1998] ECR I-1531; Case C-261/95 Palmisani [1997] ECR I-4025; Case C-319/96 Brinkmann [1998] ECR I-5255; Case C-140/97 Rechberger [1999] ECR I-3499; Case C-302/9 Konle [1999] ECR I-3099; Case C-424/97 Haim [2000] ECR I-5123; Joined Cases C-397 and 410/98 Metallgesellschaft and Hoechst [2001] ECR I-1727; Case C-150/99 Stockholm Lindöpark [2001] ECR I-493; Case C-118/00 Larsy [2001] ECR I-5063; Case C-224/01 Köbler [2003] ECR I-10239; Case C-63/01 Evans [2003] ECR I-14447; Case C-222/02 Peter Paul [2004] ECR I-9425; Case C-173/03 Traghetti [2006] ECR I-5177; Case C-470/03 A.G.M.-COS.MET [2007] ECR I-2749; Case C-511/03 Ten Kate [2005] ECR I-8979; Case C-446/04 Test Claimants in the FII Group Litigation [2006] ECR I-11753; Case C-524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I-2107; Case C-278/05 Robins [2007] ECR I-1053; Case C-445/06 Danske Slagterier [2009] ECR I-2119; Case C-452/06 Synthon [2008] ECR I-7681; Case C-118/08 Transportes Urbanos [2010] ECR I-635; Case C-568/08 Combinatie Spijker [2010] ECR I-12655; Case C-243/09 Fuß [2010] ECR I-9849; Case C-279/09 DEB [2010] ECR I-13849; Case C-94/10 Danfoss [2011] ECR I-9963; Case C-244/13 Ogieriakhi [2014] (OJ 2014 C 315, p. 15) (EU:C:2014:2068); and Joined Cases C-501/12 to C-506/12, C-540/12 and C-541/12 Specht [2014] (OJ 2014 C 282, p. 4) (EU:C:2014:2005).

Cf. Joined Cases C-94 and C-95/95 Bonifaci and Berto [1997] ECR I-3969 and Case C-373/95 Maso [1997] ECR I-4051.

Engstroem (2009), p. 212.

Craig (2012b), p. 952.

The fact that complete non-implementation of a directive a long time after the time limit for implementation had expired was more or less a per se ‘fault’, makes it understandable that the Court of Justice did not set up a fault requirement in Joined Cases C-6/60 and C-9/90 Francovich [1991] ECR I-5357. And given the different circumstances in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029, it was equally unsurprising that the Court felt the need to qualify the breach of European Union law, one way or the other, in that judgment. Considering the difficulties applicants had faced in establishing Union liability, importing Union liability criteria at this stage could however easily be thought to undermine the effectiveness of State liability and provide poorer protection for the individuals than what Francovich had paved the way for. Advocates General Tesauro and Léger (who delivered opinions in Brasserie du Pêcheur and Hedley Lomas respectively, the latter opinion delivered first but the ruling later) had different points of view on the question of applying the conditions for Union liability to Member State liability. While Advocate General Tesauro advocated alignment of the conditions for liability, Advocate General Léger opposed it. On the contrary, Advocate General Léger thought the conditions for Union liability should be softened. Famously, the German Supreme Court finally ruled that there was no sufficiently serious breach and, partly, no causation in the Brasserie case (Brasserie du Pêcheur SA v Germany, 24 October 1996, German Federal Supreme Court, [1997] 1 CMLR 971), which may indicate that scepticism regarding the adoption of Union liability criteria was not unfounded. However, it should be noted that the Advocates General essentially both concluded that discretion should be a keystone in the liability regimes (Cf. Opinion of Advocate General Tesauro in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029, para 68; and Opinion of Advocate General Léger in Case C-5/94 Hedley Lomas [1996] ECR I-2553, para 172). Since discretion in determining whether a sufficiently serious breach has taken place was strongly emphasized by the Court, it may be considered to have more or less agreed with both. This is notwithstanding the fact that it is not entirely clear why the degree of discretion should be this crucial when determining unlawfulness (a sufficiently serious breach). The excess of discretion may be just as obvious no matter the degree of the discretion, cf. Sect. 15.​5.​2.​3.

Case C-379/10 Commission v Italy [2011] ECR I-180 (Summ.pub.).

Micklitz (2012), p. 385.

Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

Case C-453/99 Courage v Crehan [2001] ECR I-6297.

The referring court also asked whether ‘a rule of national law which provides that courts should not allow a person to plead and/or rely on his own illegal actions as a necessary step to recovery of damages [should] be allowed as consistent with Community law?’ (Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 16). This is the issue of the so-called in pari delicto defense. In the legal literature, it has been argued that – concerning rights – the in pari delicto defense also makes sense from a systemic perspective: ‘Article 81 (1) EC imposes a clear obligation; the correlative of that obligation is a right on the part of those who suffer damages resulting from breach. The obligation and the right cannot, it would seem, logically be concentrated in one and the same party’ (Schepel 2004, p. 667).

Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 24.

Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 26. It should be added that the starting point for private liability concerning violations of the competition rules may well be considered to be Case C-128/92 Banks v British Coal [1994] ECR I-1209. The Court of Justice ruled in that case that national courts were precluded from awarding damages in proceedings between private parties due to violations of the Treaty articles on competition unless the Commission had previously found that such an infringement had taken place.

Green Paper on Damages actions for breach of the EC antitrust rules: COM(2005) 672, SEC(2005).

Private liability was also presupposed in Case C-421/05 City Motors Groep [2007] ECR I-653, para 33, described as well-settled law in Case C-360/09 Pfleiderer [2011] ECR I-5161, para 26, and in Case C-199/11 Otis [2012] (OJ 2013 C 9, p. 14) (EU:C:2012:684), paras 40–44, it was held that private undertakings could also be liable vis-à-vis the European Union itself.

Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 23.

Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 25.

Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 26.

Case C-453/99 Courage v Crehan [2001] ECR I-6297, para 27.

The Commission has long spoken in favour of increasing private initiatives. In this regard there have, however, arguably been some shifts in focus, cf., in general, McFadden (2013), pp. 10–19. Regulation 1/2003 on the application of the fundamental competition rules in the Treaty is clearly based on the premise that these grant rights to individuals. An expression of this may be found in the preamble, where it is said that national courts have an essential part to play: ‘When deciding disputes between private individuals, they protect the subjective rights under Community law, for example by awarding damages to the victims of infringements’ (Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), preamble recital 7). Yet when the Commission issued its Green Paper on actions for damages in antitrust cases in 2005 (Green Paper on Damages actions for breach of the EC antitrust rules: COM(2005) 672, SEC(2005) 1732), effective enforcement was emphasized instead. In the 2008 White Paper, it was ‘the legal conditions for victims to exercise their right under the Treaty to reparation of all damage suffered as a result of a breach of the EC antitrust rules’ that had to be improved. ‘Full compensation’ was therefore the guiding principle (White Paper on Damages actions for breach of the EC antitrust rules: COM(2008) 165, SEC(2008) 404–406, 3). In its proposal for a directive, more or less equal emphasis was put on the two (Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union: COM(2013) 404, SWD(2013) 203–204). The Directive’s preamble states: ‘Articles 101 and 102 TFEU produce direct effects in relations between individuals and create, for the individuals concerned, rights and obligations which national courts must enforce.’ Moreover, it states that national courts, when ruling on competition law disputes between individuals, must ‘protect subjective rights under Union law’ (Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1), preamble, recital 3).

Cf. Reich (2005), p. 36.

Cf., e.g., Drake (2006), pp. 849–855.

Bobek (2014), p. 168; with reference to Case C-453/99 Courage v Crehan [2001] ECR I-6297; Joined Cases C-295 to C-298/04 Manfredi [2006] ECR I-6619; and Case C-536/11 Donau Chemie [2013] ECR I-nyr (ECJ 6 June 2013) (OJ 2013 C 252, p. 11) (EU:C:2013:366).

Półtorak (2015), p. 324.

Cf. Case C-453/99 Courage v Crehan [2001] ECR I-6297, respectively, paras 23 and 26.

Cf. Sect. 16.​4.

Cf., in particular, Leczykiewicz (2010).

Council Directive No 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40). Cf., now, Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).

Case 14/83 Von Colson [1984] ECR 1891 concerned two female applicants for two positions as social workers in a prison in a German Land. Both of the positions were ultimately awarded to male applicants. In the national proceedings, the applicants sought, first, a declaration that they had not been appointed because of their gender. Secondly, they claimed that the defendant Land should be ordered to offer them a contract of employment in the prison or, alternatively, to pay them damages amounting to six months’ salary. One of the applicants also made a second claim in the alternative, namely for the reimbursement of travelling expenses incurred by her in pursuing her application for the post. Cf., on this case, e.g., Reich (2013), pp. 344 et seq.

Council Directive No 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regard access to employment, vocational training and promotion, and working conditions (OJ 1976, L 39, p. 40). Cf., now, Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).