The reparation of damages caused to a private party by breaches of European Community law for which a member state can be held responsible

Agnė Vaitkevičiūtė

Abstract


This article analyzes provisions essential for a private party, who seeks recovery of damages sustained due to breaches of European Community (hereinafter referred to as EC) law for which a Member State can be held responsible. It is emphasized that the recovery of damages inflicted by a Member State to a private party is regulated under the national law. In the absence of any EC legislation, a Member State must make reparation for the consequences of the loss and damage caused in accordance with the rules of the national law on liability. Nevertheless, the relevant substantive and procedural legal provisions, laid down by the national law of a Member State, must not be less favorable than those relating to similar domestic claims and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation.
The article consists of three main parts. The first part concentrates on the substantial role of national courts in the procedure of recovery of damages. It is stressed that a private party who seeks reparation of damages should have an access to judicial protection in national courts. The second part of this article describes the principles of effectiveness and equivalence (considered as the principle of non-discrimination by some legal authors), derived from the jurisprudence of the Court of Justice of the European Communities (hereinafter referred to as Court). It is emphasized that the Court has curtailed national discretion by formulating two minimum requirements for reparation of loss and damage that the national law must satisfy.
Therefore, these principles can be described as follows. Firstly, the conditions laid down by the national law must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation (principle of effectiveness). Secondly, the conditions laid down by national law must not be less favorable than those relating to similar domestic claims (principle of equivalence). It is important to mention that these two requirements are cumulative and not alternative. Once it is established that one or both of the requirements are not satisfied, the case law of the Court suggests that the national provisions concerned cannot be applied by the national court. The third part of the article concentrates on analysis of legal provisions which according to the requirements of EC law should be entrenched in the national law and which apply to the recovery of damage. Such national legal provisions can be divided into two main groups: substantive legal provisions and procedural legal provisions. In other words, these provisions of national law regulate such questions as the amount of compensation, the content and form of the reparation, the claimant, the defendant, the time limits for submission of a claim, the rules on evidence, and the determination of competent national courts in treating injury claims. It should be taken into consideration that the national courts are entrusted with the application of the abovementioned legal provisions.

Keywords


Member States liability in damages; reparation of damages caused to a private party; principle of effectiveness; principle of equivalence; substantive legal provisions; procedural legal provisions laid down by the national law

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"Societal studies" ISSN online 2029-2244 / ISSN print 2029-2236