CELEX: 62008CC0118
Language: en
Date: 2009-07-09 00:00:00
Title: Opinion of Mr Advocate General Poiares Maduro delivered on 9 July 2009. # Transportes Urbanos y Servicios Generales SAL v Administración del Estado. # Reference for a preliminary ruling: Tribunal Supremo - Spain. # Procedural autonomy of the Member States - Principle of equivalence - Action for damages against the State - Breach of European Union law - Breach of the Constitution. # Case C-118/08.

OPINION OF ADVOCATE GENERAL
      POIARES MADURO
      delivered on 9 July 2009 1(1)
      
      Case C‑118/08
      Transportes Urbanos y Servicios Generales SAL
      v
      Administración del Estado
      (Reference for a preliminary ruling from the Tribunal Supremo (Spain))
      (Liability of a Member State – Breach of Community law – Principles of equivalence and effectiveness)1.        The rule that ensuring the protection of rights conferred by Community law is a matter for the Member States’ procedural autonomy
         is traditionally tempered by the condition that national law must comply with the Community law principles of equivalence
         and effectiveness. It is a requirement of the principle of effectiveness that national procedural rules ensure effective protection
         of the rights conferred by Community law. The obligation imposed by the principle of equivalence is that national law must
         ensure that any action based on Community law is subject to procedural rules at least as favourable as those provided for
         a similar action based on domestic law. In order to conclude that there should be equal treatment in terms of procedure, it
         is consequently necessary to determine whether the two actions are comparable. That such an assessment may present difficulties
         is illustrated by the present case.
      
      I –  The main proceedings and the question referred for a preliminary ruling
      2.        The subject of the question referred for a preliminary ruling is, in essence, whether it is compatible with the Community
         law principles of equivalence and effectiveness that an action to establish State liability should be subject to differing
         procedural rules according to whether the legislation at issue contravenes a constitutional provision or a rule of Community
         law.
      
      3.        The question was referred by the Chamber for contentious administrative proceedings of the Tribunal Supremo (Supreme Court)
         (Spain) in proceedings brought by the company Transportes Urbanos y Servicios Generales SAL against the Administración del
         Estado, which had dismissed a claim to establish the liability of the Spanish State as a result of legislation which was in
         breach of Community law.
      
      4.        The background to the main proceedings is a Spanish Law of 28 December 1992, as amended by a Law of 30 December 1997, which
         limited the right of a taxable person to deduct value added tax (VAT) on the purchase of goods or services which are subsidised
         and required him to lodge periodic returns, in which he had to calculate the amounts of input and output VAT, and make payment
         of any outstanding balance (self-assessment). It must however be added that, under the Spanish legislation, (2) the taxable person has the right to request that his self-assessments be corrected and, when appropriate, to demand repayment
         of sums paid but not due provided that he does so within a period of four years.
      
      5.        When the limitation on the deductibility of VAT laid down by the Law of 28 December 1992 was ruled to be incompatible with
         Article 17(2) and Article 19 of Sixth VAT Directive 77/388/EEC, (3) the applicant in the main proceedings, which had made self-assessments for the tax years 1999 and 2000 and whose entitlement
         to correction and to recovery of sums paid but not due was time-barred when the Commission v Spain judgment was delivered, made an application for compensation for the loss it had sustained, calculated to be EUR 1 228 366. 39,
         corresponding to the VAT payments unduly collected by the Spanish State and the repayments which the applicant could have
         claimed for those tax years.
      
      6.        On 12 January 2007 the Consejo de Ministros (Council of Ministers) dismissed the application, holding that the applicant’s
         failure to challenge his self-assessments within the prescribed four-year period had broken the direct causal link between
         the alleged breach of Community law and the damage allegedly sustained. In other words, the failure to raise such a challenge
         was the sole cause of the damage. In support of its decision, the Consejo de Ministros relied on two judgments of the Tribunal
         Supremo of 29 January 2004 and 24 May 2005, according to which actions to establish State liability in respect of a breach
         of Community law are subject to the condition of prior exhaustion of administrative and judicial remedies against the administrative
         measure complained of, adopted pursuant to national legislation which is claimed to be contrary to Community law.
      
      7.        On 6 June 2007 the applicant brought an appeal before the Tribunal Supremo against the decision of the Consejo de Ministros
         to dismiss its application for compensation. In the order for reference the referring court raises the question whether the
         fact that an action to establish State liability in respect of a breach of Community law is subject to the condition that
         all remedies must first be exhausted is compatible with the Community law principles of equivalence and effectiveness. The
         court points out that an action to establish State liability as a result of legislation being unconstitutional is not subject
         to the condition that the injured party has first challenged the measure based on that legislation which adversely affected
         him.
      
      8.        Accordingly the national court has referred to the Court of Justice the following question for a preliminary ruling: 
      
      ‘Is it contrary to the principles of equivalence and effectiveness that the Tribunal Supremo should apply differing legal
         principles in the judgments of 29 January 2004 and 24 May 2005 to actions to establish the financial liability of the State
         as legislature in respect of administrative measures enacted pursuant to legislation which has been declared unconstitutional
         and to such actions in respect of measures enacted pursuant to a rule which has been held to be contrary to Community law?’
      
      II –  Legal assessment
      9.        Before providing to the referring court the answers required in order to assess whether the case-law of the Tribunal Supremo
         at issue is compatible with the Community law principles of equivalence and effectiveness, it is necessary to answer the objections
         of the Spanish Government on the admissibility of the question referred for a preliminary ruling.
      
      A –    Whether the question referred for a preliminary ruling is admissible
      10.      According to the Spanish Government, the question referred for a preliminary ruling by the national court is inadmissible,
         on the ground that the Court of Justice is competent, in preliminary ruling proceedings, to rule on the compatibility with
         Community law only of national administrative and legislative measures, and not of the case-law of a supreme court such as
         the Tribunal Supremo, since that court could itself adapt its case-law to ensure its compatibility with the requirements of
         Community law and, consequently, the present question referred for a preliminary ruling is not necessary to settle the dispute
         in the main proceedings but is more in the nature of a legal consultation.
      
      11.      The arguments of the Spanish Government on the inadmissibility of the reference for a preliminary ruling manifestly cannot
         succeed.
      
      12.      First of all, it must be observed that while the Court has no jurisdiction, in preliminary ruling proceedings, to assess whether
         provisions of national law are consistent with rules of Community law, it is the task of the Court, after any required rewording
         of the question referred, to provide the national court with all the guidance on the interpretation of Community law which
         may be useful to it in order to assess the effects of the provisions of that law. (4) In the present case, the question referred by the Tribunal Supremo calls upon the Court to provide an interpretation of the
         Community law principles of equivalence and effectiveness, to enable it to assess whether its case-law is consistent with
         Community law.
      
      13.      Second, there is manifestly no restriction as to the nature of the national rules which may thus be indirectly challenged
         when a question of interpretation of Community law is referred for a preliminary ruling. Contrary to the position of the Spanish
         Government, those rules may well have their origin in judge-made law. The Court has moreover already been called upon to give
         indirectly a preliminary ruling on whether national case-law is inconsistent with Community law. (5) It can finally be added that in any event a question relating to case-law may always be reworded so as to relate to the provisions
         of national law on the basis of which the domestic court has developed its case-law. In other words, the question referred
         in the present case can be understood as relating to whether the interpretation by the Tribunal Supremo of the provisions
         of national law relating to actions to establish State liability is compatible with the Community law principles of equivalence
         and effectiveness.
      
      14.      Lastly, it is as a rule solely for the national court before which the dispute has been brought, and which must assume responsibility
         for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need
         for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to
         the Court and, where the questions concern the interpretation of Community law, the Court of Justice is bound to give a ruling. (6) Only exceptionally could the Court decline to give a ruling and declare the question referred for a preliminary ruling to
         be inadmissible, inter alia, if it was manifestly obvious that the question was not objectively required in order to settle
         the dispute in the main proceedings. (7) That does not apply in this case. While it is true that the Tribunal Supremo is at liberty itself to alter its case-law in
         order, when necessary, to make it meet the requirements of Community law, that court has found it necessary to refer a question
         to the Court of Justice on the interpretation of the principles of equivalence and effectiveness in order that it can make
         an assessment of its own case-law. It is not manifestly obvious that the present case falls into one of the situations which
         would lead the Court to call in question ‘the presumption of relevance’ enjoyed by questions relating to the interpretation
         of Community law which are referred by a national court. (8)
      
      15.      The question referred for a preliminary ruling in this case is therefore admissible.
      
      B –    The principle of effectiveness
      16.      Where an action to establish State liability in respect of the breach of Community law by legislation is subject to the condition
         that the litigant must first have exhausted all remedies, administrative and judicial, against the administrative measure
         which has caused him harm and which was adopted pursuant to legislation contrary to Community law, that does not in itself
         appear to contravene the principle of the effectiveness of legal protection.
      
      17.      It is true that, according to settled case-law, a right to reparation, which stems from the principle of State liability for
         loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible,
         is subject only to three conditions: the rule of law infringed must be intended to confer rights on individuals, 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 injured person. (9) And those conditions are ‘necessary and sufficient’ to found a right in favour of individuals to obtain redress. (10) It could therefore be inferred that a Member State cannot make the right to compensation subject to the condition that the
         individual should first have challenged the legality of the measure which is the cause of the damage for which he seeks reparation,
         without thereby failing to observe the principle of effectiveness of legal protection which is the basis of the principle
         of the liability of Member States as a result of a breach of Community law. (11)
      
      18.      However, the case-law of the Tribunal Supremo at issue is based on the fact that the injured party could have obtained reparation
         for the entirety of the loss claimed if he had in good time challenged the validity of the measure which caused the loss.
         
      
      19.      It follows from a general principle common to the legal systems of the Member States (12) that in order to determine the reparable loss or damage the national court may take account of whether the injured party
         has shown reasonable diligence in limiting the extent of the loss or damage, in other words, whether the injured party availed
         himself in good time of all the legal remedies reasonably available to him to avoid the loss or damage or limit its extent. (13)
      
      20.      Furthermore, the Court has held, first, that the admissibility of an action for a declaration of the Community’s non-contractual
         liability may be conditional on the exhaustion of national remedies available to obtain the annulment of the national measure
         which has caused the damage or loss, provided that those national remedies are capable of resulting in compensation for the
         damage alleged, (14) and, secondly, that an action for damages brought against the Community is inadmissible when it concerns the same illegality
         and has the same financial end in view as an action for annulment of the institution’s measure causing damage, which the injured
         party has failed to bring in good time. (15) It is so, in those two cases, where the amount of the damages claimed corresponds to the amount of the sum which the national
         or Community authorities have levied in breach of Community law. The Court then may be said to raise against the action for
         damages an objection of parallel proceedings, to the extent that the action for recovery of sums paid but not due – in other
         words, if one prefers, an action for annulment of the national or Community tax measure – before the national or Community
         authorities, would have provided adequate reparation for the loss (16) and the action for damages actually conceals an action for recovery of sums paid but not due.
      
      21.      The Court has also ruled that ‘the conditions under which the State may incur liability for damage caused to individuals by
         a breach of Community law cannot, in the absence of particular justification, differ from those governing the liability of
         the Community in like circumstances. The protection of the rights which individuals derive from Community law cannot vary
         depending on whether a national authority or a Community authority is responsible for the damage.’ (17)
      
      22.      To return now to the case in the main proceedings, it can be observed that the damage or loss for which reparation is sought
         is nothing other than the amount of VAT, with the addition of interest at the statutory rate, which the applicant in the main
         proceedings had to pay in breach of Community law. In such circumstances, in order to nullify the damage or loss the applicant
         needed only to bring an action for repayment of the tax paid but not due based on the direct effect of the provisions of the
         Sixth VAT Directive which were infringed. (18) It is settled case-law that entitlement to the repayment of charges levied by a Member State contrary to the rules of Community
         law is a consequence of, and an adjunct to, the rights conferred on individuals by the infringed provision which has direct
         effect. (19) Accordingly, the applicant in the main proceedings was entitled, in accordance with the Spanish legislation allowing him
         that opportunity, to request, within the four-year period prescribed, the correction of his self-assessments for the financial
         years 1999 and 2000 and repayment of VAT paid but not due in respect of those years, an opportunity which the applicant failed
         to take. In those circumstances, when the admissibility of the action to establish the liability of the State as legislature
         as a result of a breach of Community law is made subject by the Tribunal Supremo to the pre-condition of a challenge to the
         administrative measure which caused the damage or loss and which was based on the legislation contrary to Community law, the
         Tribunal Supremo does no more than make an action to establish liability conditional on the bringing of the action for recovery
         of sums paid but not due which was available to the applicant in the main proceedings.
      
      23.      It follows that making the admissibility of the action to establish State liability, as a result of legislation being in breach
         of Community law, subject to the condition that the injured party has first challenged the administrative measure based on
         that legislation is not, in principle, contrary to the principle of effectiveness, provided that, by challenging in good time
         the validity of the harmful measure, the injured party could have obtained reparation for the entirety of the damage or loss
         claimed.
      
      24.      If the principle of effectiveness is to be observed, it is however also necessary that an action for a declaration of the
         State’s non-contractual liability as a result of legislation being in breach of Community law is not made subject by national
         law to procedural rules which make it, in practice, impossible or excessively difficult to obtain reparation. It is therefore
         also necessary that where an action for recovery of sums paid but not due is a precondition of the admissibility of an action
         for a declaration of liability the former action is not made subject by national law to procedural rules which make the bringing
         of such an action in practice impossible or excessively difficult. (20)
      
      25.      The question therefore to be answered is whether the period of four years from the date on which the taxable person submits
         his self-assessments, within which Spanish law confines an application for correction, makes the bringing of an action for
         repayment of tax unduly paid in breach of Community law in practice impossible or excessively difficult.
      
      26.      In that regard, Community law allows the laying down of reasonable limitation periods for the bringing of an action for recovery
         of sums paid but not due in the interests of legal certainty, which protects both the taxpayer and the administration concerned. (21) Such reasonable periods cannot be regarded as contrary to the principle of effectiveness, even if the expiry of those periods
         necessarily entails the dismissal of the action brought. (22) In relation to recovery of sums paid but not due, a limitation period under national law of three years from the date of
         payment of the charges in question has accordingly been held to be reasonable. (23)
      
      27.      A fortiori, a period of four years such as that laid down by the Spanish legislation therefore complies with the principle
         of effectiveness, even though the period had already expired and therefore no longer permitted an application for correction
         of the self-assessments made for the years 1999 and 2000 when the Court declared that the Spanish Law was incompatible with
         the provisions of the Sixth VAT Directive. The action for recovery of sums paid but not due is not dependent on the Court
         having first declared that the charge is incompatible with Community law, since the principle of primacy obliges the administrative
         authorities and the national courts to refrain, of their own motion, and without waiting for such a finding by the Court,
         from applying the tax legislation which they deem to be contrary to Community law. (24)
      
      C –    The principle of equivalence
      28.      It is now necessary to determine whether the fact that Spanish law makes an action to establish the liability of the State
         as legislature subject to differing procedural rules, depending on whether the action is based on a breach of Community law
         or on breach of the Constitution, does not contravene the principle of equivalence. The condition of prior exhaustion of remedies
         against the harmful administrative measure adopted pursuant to legislation is applied only to actions to establish State liability
         as a result of the breach of Community law by legislation and not to actions based on the fact that legislation has infringed
         the Constitution. The procedural rules applying to actions of the former kind are therefore a priori more strict than those applying to actions of the latter kind.
      
      29.      However it is a requirement of the principle of equivalence that conditions imposed by national law in relation to compensation
         for damage are not less favourable where an action to establish liability is based on Community law than where it is based
         on national law, (25) and indeed that the procedural rule in question applies without distinction to actions based on a breach of Community law
         and to those based on an infringement of national law, though that does not mean that a Member State is obliged to extend
         its most favourable rules governing liability under national law to all actions for compensation based on a breach of Community
         law. (26)
      
      30.      Before the principle of equivalence can be relevant, it is still necessary however that the two actions are similar. (27) To decide that, a comparison must be made of their purpose, cause of action and essential characteristics. (28) Given that they manifestly share the same purpose (compensation for damage or loss) and cause of action (the unlawfulness
         of the harmful conduct), it must therefore be determined whether an action to establish State liability based on the breach
         by legislation of Community law differs, in its essential characteristics, (29) from an action to establish State liability based on the fact that legislation infringes the Constitution, to such an extent
         that the different procedural treatment applied to them under Spanish law would be justified. 
      
      31.      In order to justify the difference in the procedural rules applying to the two actions to establish liability, the referring
         court puts forward various considerations which, in essence, amount to saying that it is, in practice, impossible or excessively
         difficult to make a prior challenge to a harmful administrative measure where that measure was based on legislation which
         is unconstitutional, as opposed to where the measure was based on legislation which is contrary to Community law, with the
         consequence that the imposition of such a precondition on an action to establish the liability of the State as legislature
         as a result of an infringement of the Constitution would deprive that action of any effectiveness. In brief, the constitutionality
         of legislation can be less easily challenged by the litigant than its compatibility with Community law.
      
      32.      First, that is said by the referring court to be the case because the effects of judgments of the Tribunal Constitucional
         (the Spanish Constitutional Court) which declare a Spanish law to be unconstitutional are not the same as those of preliminary
         rulings of the Court of Justice which lead to national legislation being held to be incompatible with Community law. A declaration
         that legislation is unconstitutional results in the legislation being a nullity, in other words its non-existence ex tunc, while, conversely, a judgment of the Court, which leads to national legislation being held to be incompatible with Community
         law, does not, by itself, result in the legislation in question being a nullity. That is true.
      
      33.      That argument relating to the retroactive effect of the declaration that unconstitutional legislation is null and void is,
         however, inconsistent with the logic of the arguments put forward by the Tribunal Supremo to justify the fact that actions
         to establish liability as a result of legislation which is unconstitutional are treated more favourably than actions to establish
         liability as a result of legislation which is contrary to Community law. It is rather an argument for the effectiveness (or
         greater effectiveness) of remedies against a harmful measure based on legislation which is unconstitutional and requires,
         consequently, if the principle of equivalence is to be observed, the imposition of the same condition, namely prior exhaustion
         of remedies, on an action to establish State liability as a result of the fact that legislation is unconstitutional.
      
      34.      That argument lacks, moreover, any factual basis. In accordance with settled case-law, (30) the effects of a preliminary ruling on interpretation are also, as a general rule, retroactive, given that they are declaratory:
         the interpretation of a rule of Community law by the Court clarifies and defines the meaning and scope of that rule as it
         ought to have been understood and applied from the date on which it entered into force, and consequently that interpretation
         is retroactive to the date on which the interpreted rule entered into force, and the rule thus interpreted must be applied
         even to legal relationships which arose and were formed before the Court gave its ruling. Furthermore, as the referring court
         stated and as the Spanish Government clarified at the hearing, the nullity of the Spanish legislation which is unconstitutional
         does not automatically entail the nullity of administrative measures based on it; it is for the court hearing the matter to
         determine the effect of the nullity of the unconstitutional legislation in each case. It follows that the litigant must, relying
         on the declaration that unconstitutional legislation is a nullity, request the annulment of the administrative measures adopted
         under that legislation and he may possibly, for reasons of legal certainty, come up against the principle of res judicata if he does not do so within the prescribed time-limits. In other words, when the limitation period has expired, a taxpayer
         may no longer challenge a tax demand, even if he relies on a declaration that the tax law is unconstitutional. Equally, if
         the national law does not itself provide for that possibility, Community law does not require the administrative authorities
         to reopen a decision, especially when it has become final after the expiry of reasonable time-limits to bring proceedings,
         in order to ensure the full operation of Community law as interpreted in a subsequent preliminary ruling, notwithstanding
         the ex tunc effect of that ruling. (31) There is therefore no significant difference in effect between declarations by the Spanish Tribunal Constitucional that national
         legislation is unconstitutional and preliminary rulings on interpretation by the Court of Justice. 
      
      35.      The second difference proposed by the Tribunal Supremo, that it is easier to make a prior challenge to a harmful measure where
         that measure had been adopted pursuant to legislation which is contrary to Community law than when it had been adopted on
         the basis of legislation which is unconstitutional, is linked to the presumption of constitutionality enjoyed by Spanish legislation.
         That has two consequences.
      
      36.      The first consequence is that the individual has no standing to bring an action to declare legislation to be unconstitutional;
         he can merely call upon, but in no way compel, the court hearing the case to refer that matter to the Tribunal Constitucional.
         On the other hand, the Court of Justice has ruled that the principle of primacy obliges the national court before which proceedings
         have been brought, at the request of one of the parties, to disapply legislation which is contrary to Community law. (32) However, the finding that legislation is incompatible with a rule of Community law depends very often on how that rule is
         to be interpreted, and the reference to the Court of Justice for a preliminary ruling made, when necessary, in order to clarify
         that interpretation is also independent of any initiative by the parties and depends entirely on the national court’s assessment
         as to whether that reference is appropriate and necessary. (33) It is true that national courts or tribunals against whose decisions there is no remedy must, under Article 234 EC, if a
         question of interpretation of Community law is raised, refer examination of it to the Court of Justice. But it is well known
         that the theory of acte clair (34) releases, in certain circumstances and under certain conditions, the supreme national courts from that obligation to refer.
         On the other hand, the freedom of a Spanish court to refer a question of constitutionality of legislation is more restricted.
         It is clear from Article 163 of the Spanish Constitution and Article 35 of the Organic Law on the Tribunal Constitucional, (35) as interpreted by the Tribunal Constitucional itself, (36) that individuals may, by calling into question the constitutionality of legislation before the court hearing the main proceedings,
         compel that court to undertake a preliminary examination and, if the court also considers the legislation to be unconstitutional,
         to refer that question of the legislation’s constitutionality to the Tribunal Constitucional. The opportunities, before the
         national court hearing the main proceedings, to call into question either the legislation’s constitutionality or its compatibility
         with Community law do not therefore differ much. (37) It must moreover be added that if the individual does not obtain from the national court hearing the main proceedings a reference
         to the Tribunal Constitucional of the question of the legislation’s constitutionality, he has also the opportunity to bring
         that matter directly before the Tribunal Constitucional by means of a recurso de amparo (individual appeal for constitutional protection), whereas he obviously has no such means of directly challenging the legislation
         in the light of Community law either before the national court or before the Court of Justice.
      
      37.      The second consequence which stems from the presumption of constitutionality enjoyed by Spanish legislation is that the administrative
         authority is obliged to apply it. The result is a presumption that administrative measures which are based on that legislation
         are lawful. In other words, any administrative proceedings which seek to challenge an administrative measure, on the ground
         that the legislation which the measure implements is unconstitutional, must inevitably fail. On the other hand, the principle
         of primacy obliges not only the national courts but also the national administrative authorities to disapply legislation which
         is contrary to Community law (38) and, consequently, to uphold an administrative appeal brought against an administrative measure pursuant to that legislation.
      
      38.      The two situations are nevertheless not actually comparable. The presumption of the constitutionality of national legislation
         stems from the fact that the legislature is recognised to have higher authority than the administrative authorities in relation
         to interpretation of the Constitution. Only the constitutional court can displace that presumption in a legal order where
         the review of constitutionality is centralised. That is a consequence of the separation of powers within the constitutional
         order of that State. But, when the administrative authorities must resolve a conflict between national and Community rules,
         they are no longer acting exclusively within their domestic constitutional order. On the contrary, the administrative authorities
         are faced with the opposing intents of two legislatures, which come from two legal orders which are different although integrated,
         and which are subject to different presumptions of validity. That is why the deference to national legislation imposed on
         the administrative authorities within the domestic constitutional order cannot be purely and simply transposed to the relationship
         between that legal order and the Community legal order. In itself, the obligation on the national administrative authorities
         to disapply national rules, whatever they may be, which are incompatible with Community law, does not stem from a hypothetical
         inverse presumption that national law is incompatible with Community law. It is rather, on the contrary, because Community
         measures enjoy, in the Community legal order, a presumption of validity equivalent to that enjoyed by national legislation
         within the national legal order that, where the administrative authorities are faced with a conflict between Community law
         and national legislation, they must have a criterion to resolve that conflict. And that criterion is provided by the principle
         of primacy. Consequently, when the administrative authorities refrain from applying national legislation which is contrary
         to Community law, the administrative authorities do not overturn the presumption of the validity of national legislation or
         call into question the constitutional principle at national level of separation of powers. On the contrary, the administrative
         authorities are faced with an equivalent presumption of the validity of the Community rule and resolve that conflict on the
         basis of the principle of the primacy of Community law. The fact remains that, even though the assumptions are different and
         the two situations can therefore be compared in terms of principles only with difficulty, the result is that, in practice,
         the individual receives before the administrative authorities a protection against legislation contrary to Community law which
         he does not have against legislation which is unconstitutional.
      
      39.      It is, however, not clear that the fact that the opportunities which individuals have to challenge the constitutionality of
         legislation are, because of the presumption that the legislation is constitutional, more restricted than those to call into
         question the compatibility of legislation with Community law is capable of providing justification for the practice of making
         an action to establish the liability of the State as legislature because of the breach of Community law, but not an action
         to establish the liability of the State as legislature because of an infringement of the Constitution, subject to the condition
         that the individual must have first exhausted all remedies, administrative and judicial, against the harmful administrative
         measure based on that legislation.
      
      40.      As has been seen, it is in actual fact only before the administrative authorities that the protection against legislation
         incompatible with Community law is unquestionably stronger than the protection against unconstitutional legislation. If the
         Community law principle of equivalence is to be observed, such a difference is not however capable of providing justification
         for the fact that an action to establish State liability because of the breach by legislation of Community law is subject
         to the condition that all remedies not only administrative but also judicial against the administrative measure based on that legislation must have first been exhausted, while such a condition is not
         imposed in the case of an action to establish liability because of the infringement by legislation of the Constitution.
      
      III –  Conclusion
      41.      In light of the foregoing, the answer which should be given to the question referred by the Tribunal Supremo is as follows:
      
      (1)      To make an action to establish State liability as a result of legislation being in breach of Community law subject to the
         condition that there must have first been a challenge to the validity of the administrative measure adopted pursuant to that
         legislation does not infringe the principle of effectiveness, provided that by challenging in good time the validity of that
         administrative measure the individual could have obtained reparation for the entirety of the loss or damage claimed.
      
      (2)      To make an action to establish State liability as a result of legislation being in breach of Community law subject to the
         condition that there must have first been a challenge to the validity of the administrative measure adopted pursuant to that
         legislation infringes the principle of equivalence, since an action to establish State liability as a result of legislation
         being in breach of the Constitution is not subject to such a condition and since the opportunities to call into question an
         administrative measure adopted pursuant to legislation do not significantly differ according to whether it is the constitutionality
         of the legislation or its compatibility with Community law that is at issue.
      
      1 –	Original language: French.
      
      2 –	General Tax Law No 58/2003 of 17 December 2003.
      
      3 –	Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common
         system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1, ‘the Sixth VAT Directive’). See Case C‑204/03
         Commission v Spain [2005] ECR I‑8389.
      
      4 –	See Case C‑58/98 Corsten [2000] ECR I‑7919, paragraph 24, and Case C‑181/00 Flightline [2002] ECR I‑6139, paragraph 20.
      
      5 –	See Case C‑224/01 Köbler [2003] ECR I‑10239.
      
      6 –	See Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑300/01 Salzmann [2003] ECR I‑4899, paragraphs 29 and 30; Flightline, paragraph 21; and Case C‑261/07 VTB‑VAB [2009] ECR I‑0000, paragraph 32;
      
      7 –	See, for example, Case C‑18/93 Corsica Ferries [1994] ECR I‑1783, paragraph 14.
      
      8 –	For a list of those situations, see most recently Case C‑210/06 Cartesio [2008] ECR I‑9641, paragraph 67; see, as an earlier example, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 22.
      
      9 –	See, for a recent statement of the law, Case C‑445/06 Danske Slagterier [2009] ECR I‑0000, paragraphs 19 and 20.
      
      10 –	See Köbler, paragraph 57, and Joined Cases C‑46/93 and C‑48/93 Brasserie du pêcheurand Factortame [1996] ECR I‑1029, paragraph 66.
      
      11 –	See Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357.
      
      12 –	See Joined Cases C‑104/89 and C‑37/90 Mulder and Others v Council and Commission [1992] ECR I‑3061, paragraph 33.
      
      13 –	See Brasserie du pêcheur and Factortame, paragraphs 84 and 85; Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I‑1727, paragraph 101; Case C‑524/04 Test Claimants in the Thin Cap Group Litigation [2007] ECR I‑2107, paragraph 124; and Case C‑445/06 Danske Slagterier [2009] ECR I‑0000, paragraphs 60 to 62. 
      
      14 –	See Case 175/84 Krohn Import‑Export v Commission [1986] ECR 753, paragraph 27; Case 81/86 De Boer Buizen v Council and Commission [1987] ECR 3677, paragraph 9; and Case 20/88 Roquette frères v Commission [1989] ECR 1553, paragraph 15.
      
      15 –	See Case 543/79 Birke [1981] ECR 2669, paragraph 28 and Case 799/79 Bruckner v Commission and Council [1981] ECR 2697, paragraph 19; order of 26 October 1995 in Joined Cases C‑199/94 P and C 200/94 P Pevasa and Inpesca v Commission [1995] ECR I‑3709, paragraphs 26 to 28; and Case C‑310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I‑5363, paragraph 59.
      
      16 –	See Case C‑150/99 Stockholm Lindöpark [2001] ECR I‑493, paragraph 35.
      
      17 –	Brasserie du pêcheur and Factortame, paragraph 42; Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 41.
      
      18 –	Article 17(2) of that directive has been recognised to have direct effect (see Case C‑62/93 BP Supergas [1995] ECR I‑1883, paragraphs 32 to 360).
      
      19 –	See for example Case 199/82 San Giorgio [1983] ECR 3595, paragraph 12, and Test Claimants in the Thin Cap Group Litigation.
      
      20 –	As is stated more than once in the case-law. See, for example, as regards an action for a declaration of State liability
         as a result of a breach of Community law, Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraph 27; Case C‑446/04 Test Claimants in the FII Group Litigation [2006] ECR I‑11753, paragraph 219; as regards recovery of sums paid but not due, Metallgesellschaft and Others, paragraph 85, and Test Claimantsin the FII Group Litigation, paragraph 203.
      
      21 –	See Case 33/76 Rewe‑Zentralfinanz and Rewe‑Zentral [1976] ECR 1989, paragraph 5; Case C‑90/94 Haahr Petroleum [1997] ECR I‑4085, paragraph 48; Case C‑228/96 Aprile [1998] ECR I‑7141, paragraph 19; and Case C‑88/99 Roquette Frères [2000] ECR I‑10465, paragraph 22.
      
      22 –	See Case C‑188/95 Fantask and Others [1997] ECR I‑6783, paragraph 48, and Case C‑88/99 Roquette Frères, paragraph 23.
      
      23 –	See Case C‑231/96 Edis [1998] ECR I‑4951, paragraphs 39 and 49.
      
      24 –	See Case 106/77 Simmenthal [1978] ECR 629, and Case 103/88 Costanzo [1989] ECR 1839, paragraph 31. Even though there is known currently to be a debate in Spain on the scope and specific means
         of implementing that obligation under Community law (see the judgment of the Tribunal Constitucional No 58/2004 of 19 April
         2004; article by Alonso Garcia, R., CML Rev 2005, p. 535; Martín Rodríguez, P.J., Revista Espanola de Derecho Constitucional,
         2004, p. 315.
      
      25 –	See Brasserie du pêcheur and Factortame, paragraph 67; Palmisani, paragraph 27, and Danske Slagterier, paragraph 31.
      
      26 –	See to that effect, in relation to an action for recovery of sums paid but not due, Edis, paragraph 36. It is to be noted that the Court employs without distinction the two formulations, although they are perhaps
         not entirely equivalent (see, for example, Case C‑326/96 Levez [1998] ECR I‑7835 paragraphs 37 and 41). 
      
      27 –	In other words ‘comparable’ (see my Opinion in van der Weerd and Others, point 15).
      
      28 –	See Case C‑78/98 Preston and Others [2000] ECR I‑3201, paragraph 57. 
      
      29 –	See, to the same effect, Palmisani, paragraph 38.
      
      30 –	See most recently Case C‑2/06 Kempter [2008] ECR I‑411, paragraphs 35 and 36, and case-law there cited.
      
      31 –	See Case C‑453/00 Kühne & Heitz [2004] ECR I‑837.
      
      32 –	See Simmenthal.
      
      33 –	For a recent statement of the law, see Cartesio, paragraphs 90 and 91; Kempter, paragraphs 41 and 42, and case-law cited.
      
      34 –	Affirmed by the Court: see Case 283/81 Cilfit and Others [1982] ECR 3415.
      
      35 –	Organic Law No 2/1979 of 3 October 1979, BOE of 5 October 1979, p. 23180.
      
      36 –	See judgment No 67/1988 of 18 April 1988.
      
      37 –	See to that effect also Alonso Garcia, R., ‘La responsabilidad patrimonial del Estado-legislador, en especial en los casos
         de infracción del Derecho Comunitario’, QDL No 19, 2009.
      
      38 –	See Costanzo, paragraph 31, and Case C‑198/01 CIF [2003] ECR I‑8055, paragraph 49.