Opinion of Advocate General Szpunar delivered on 9 December 2021.

• Jurisdiction: European Union
• Celex Number: 62020CC0278
• ECLI: ECLI:EU:C:2021:996
• Date: 09 December 2021
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 9 December 2021 (1)

Case C‑278/20

European Commission

v

Kingdom of Spain

(Failure of a Member State to fulfil obligations – Breach of EU law by the Spanish legislature – Loss or damage caused to individuals – National legislation aligning the rules on the liability of the State as legislature for breaches of EU law with the rules laid down for breaches of the Spanish Constitution by acts of the legislature – Compensation made impossible or excessively difficult – Principles of effectiveness and equivalence)

I. Introduction

1. The principle of State liability for loss or damage caused to individuals in breach of EU law for which the State can be held responsible is inherent in the system of the Treaties; that fact has been repeatedly asserted by the Court. (2) Individuals harmed have a right to reparation where three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between the breach and the loss or damage sustained by the individuals. (3)

2. It must also be made clear that, subject to the right to reparation which flows directly from EU law where those conditions are satisfied, it is on the basis of the rules of national law on liability that the State must make reparation for the consequences of the loss or damage caused, provided that the conditions for reparation of loss and damage laid down by national law are not less favourable than those relating to similar domestic claims (principle of equivalence) and are not so framed as to make it, in practice, impossible or excessively difficult to obtain reparation (principle of effectiveness). (4)

3. Those two principles lie at the heart of the present infringement proceedings. By its application of 24 June 2020, the European Commission asks the Court to declare that, by adopting and maintaining in force certain provisions on the liability of the State as legislature, the Kingdom of Spain has failed to fulfil its obligations under the principles of effectiveness and equivalence, which limit the procedural autonomy (5) enjoyed by Member States when laying down the conditions governing their liability for loss or damage caused to individuals in breach of EU law.

II. Spanish law

4. Article 106(2) of the Spanish Constitution provides that ‘private individuals shall, under the conditions established by law, be entitled to compensation for any damage to their property or infringement of their rights, except in cases of force majeure, whenever such loss or infringement is the result of the operation of public services’.

5. Ley orgánica 6/1985 del Poder Judicial (Organic Law 6/1985 on the judiciary) of 1 July 1985, (6) as amended by Organic Law 7/2015 of 21 July 2015, (7) provides, in Article 4a(1) thereof, that ‘judges and courts shall apply [EU] law in accordance with the case-law of the Court of Justice of the European Union’.

6. Ley 29/1998 reguladora de la Jurisdicción Contencioso-Administrativa (Law 29/1998 governing the jurisdiction of the administrative courts) of 13 July 1998 (8) states, in Article 31 thereof:

‘1. Applicants may request that the acts and provisions open to challenge pursuant to the previous chapter are declared unlawful and, where appropriate, annulled.

2. They may also request that a particular legal situation is recognised and that appropriate measures are adopted to ensure that that situation is fully restored, including compensation for loss or damage, where appropriate.’

7. Article 71(1)(d) of that law provides:

‘Where the judgment upholds the administrative-law action:

…

(d) If an application to obtain reparation for loss or damage is allowed, the right to reparation shall be declared in all circumstances, and the person obliged to pay compensation shall also be specified. The judgment shall also set the amount of the compensation where this is expressly requested by the applicant and the case file contains sufficient evidence to do so. Otherwise, a basis shall be established for the calculation of that amount, and the final calculation shall be deferred to the period of enforcement of the judgment.’

8. Article 110(1) of that law states:

‘In matters relating to taxation, staff of the public authorities and market unity, the effects of a final judgment that has recognised a particular legal situation in favour of one or more persons may be extended to others, pursuant to that judgment, where the following conditions are satisfied:

(a) the interested parties are in the same legal situation as the persons benefitting from the favourable judgment;

(b) the judge or court which made the decision also has territorial jurisdiction to hear and rule on their applications for recognition of that particular situation;

(c) the interested parties request the extension of the effects of the judgment within a period of one year from the final service of that judgment on the persons who were parties to those proceedings. Where an appeal is lodged in the interest of the law or for revision, that period shall begin to run from the final service of the decision giving final judgment on the appeal.’

9. Article 221 of Ley 58/2003 General Tributaria (Law 58/2003 on general taxation) of 17 December 2003 (9) provides:

‘1. The procedure for recognition of the right to repayment of amounts unduly paid shall be initiated ex officio or at the request of the person concerned in the following situations:

(a) where payment of tax debts or penalties has been duplicated;

(b) where the amount paid was greater than the amount payable further to an administrative act or a self-assessment;

…’

10. Ley 39/2015 del Procedimiento Administrativo Común de las Administraciones Públicas (Law 39/2015 on the common administrative procedure for public bodies) of 1 October 2015 (10) (‘Law 39/2015’) provides, in Article 67 thereof, which is entitled ‘Applications to initiate proceedings to establish liability’:

‘1. Interested persons can apply for proceedings to establish liability to be initiated only if their right to seek reparation has not become time-barred. The right to seek compensation shall be time-barred one year after the event or act forming the grounds for reparation occurred or after its adverse effect occurred. In cases of physical or psychological harm caused to individuals, the period shall run from the time of recovery or from the determination of the scope of the related consequences.

…

In the cases of liability referred to in Article 32(4) and (5) of Law [40/2015], ^[(11)^] the right to seek reparation shall be time-barred one year after publication in the Boletín Oficial del Estado or in the Official Journal of the European Union, as appropriate, of the decision finding the rule to be unconstitutional or declaring it contrary to [EU] law.’

11. Article 106(4) of Law 39/2015 provides:

‘When they declare a provision or an act to be null and void, public authorities may determine, in the same decision, the compensation to be awarded to the persons concerned, provided that the conditions laid down in [Article] 32(2) and [in Article] 34(1) of Law [40/2015] are met …’

12. The preliminary title of Law 40/2015 includes a Chapter IV, entitled ‘Liability of public authorities’, which contains Articles 32 to 37.

13. Article 32 of that law, which concerns the principles governing the liability of public authorities, provides:

‘1. Individuals shall be entitled to compensation from the relevant public authorities for any damage to their property or infringement of their rights where that loss or infringement is the result of the normal or abnormal operation of public services, except in cases of force majeure or of loss or damage which, under the law, the individual is required by law to assume.

The annulment, by administrative means or by order of the administrative courts, of administrative acts or provisions shall not give rise per se to a right to reparation.

2. In any case, the loss or damage claimed must be genuine, economically assessable and particular to a person or to a group of people.

3. Similarly, individuals shall also be entitled to compensation from public authorities for any damage to their property or infringement of their rights arising from the application of legislative acts that are not acts ordering the expropriation of rights, which they are not required by law to assume, where the legislative acts in question so provide and subject to the conditions laid down therein.

The State as legislature can also be rendered liable in the following situations, provided that the conditions laid down in the preceding paragraphs are satisfied:

(a) where the loss or damage stems from the application of a statutory rule declared unconstitutional, provided that the requirements referred to in paragraph 4 are met;

(b) where the loss or damage stems from the application of a rule that is contrary to [EU] law, in accordance with the provisions of paragraph 5.

4. If the loss or damage is the result of a statutory rule declared unconstitutional, the individual may be awarded compensation if he has obtained, before any court, a final decision dismissing an action brought against the administrative act that caused the loss or damage, provided that the individual relied on the unconstitutionality of the rule that was subsequently recognised.

5. If the loss or damage is the result of the application of a rule declared contrary to [EU] law, the individual may be awarded compensation if he has obtained, before any court, a final decision dismissing an action brought against the administrative act that caused the loss or damage, provided that the individual relied on the breach of [EU] law that was subsequently recognised. In addition, all the following conditions must be met:

(a) the rule of law must be intended to confer rights on individuals;

(b) the...