Milena Tomášová v Slovenská republika - Ministerstvo spravodlivosti SR and Pohotovosť s.r.o.
Date: 2016-07-28
18


According to the Court’s settled case-law, the principle of State liability for loss or damage caused to individuals as a result of breaches of EU law for which the State can be held responsible is inherent in the system of the treaties on which the European Union is based (see judgments of 19 November 1991 in Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 35; of 5 March 1996 in Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 31, and of 14 March 2013 in Leth, C‑420/11, EU:C:2013:166, paragraph 40).
19


That principle applies to any case in which a Member State breaches EU law, whichever public authority is responsible for the breach (see, to that effect, judgments of 5 March 1996 in Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 32; of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraph 31; of 13 June 2006 in Traghetti del Mediterraneo, C‑173/03, EU:C:2006:391, paragraph 30, and of 25 November 2010 in Fuß, C‑429/09, EU:C:2010:717, paragraph 46).
20


That principle is also applicable, subject to certain conditions, where the breach at issue stems from a decision of a court adjudicating at last instance. In the light of the essential role played by the judiciary in the protection of the rights derived by individuals from rules of EU law and of the fact that a court ruling at last instance constitutes, by definition, the last instance before which those individuals can enforce the rights conferred on them by those rules, the Court considers that the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by a breach of EU law attributable to a decision of a court of a Member State adjudicating at last instance (see, to that effect, judgments of 30 September 2003 in Köbler, C‑224/01,EU:C:2003:513, paragraphs 32 to 36 and 59; of 13 June 2006 in Traghetti del Mediterraneo, C‑173/03, EU:C:2006:391, paragraph 31, and of 9 September 2015 in Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 47).
22


However, it should be noted that, concerning the conditions for incurring the non-contractual liability of the State to make reparation for loss and damage caused to individuals as a result of breaches of EU law for which it is responsible, the Court has repeatedly held that individuals who have been harmed have a right to reparation if 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 that breach and the loss or damage sustained by the individuals (see, inter alia, judgments of 5 March 1996 in Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51; of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraph 51, and of 14 March 2013 in Leth, C‑420/11, EU:C:2013:166, paragraph 41).
23


The liability of a Member State for damage caused by the decision of a court adjudicating at last instance which breaches a rule of EU law is governed by the same conditions (see judgment of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraph 52).
24


Concerning, in particular, the second of the conditions referred to in paragraph 22 of the present judgment, that liability can be incurred only in the exceptional case where the court has manifestly infringed the applicable law (see judgments of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraph 53, and of 13 June 2006 in Traghetti del Mediterraneo, C‑173/03, EU:C:2006:391, paragraphs 32 and 42).
25


In order to determine whether there is a sufficiently serious breach of EU law, it is necessary to take account of all the factors which characterise the situation brought before the national court. Therefore, according to the Court’s case-law, among the factors which can be taken into consideration in that regard are, in particular, the degree of clarity and precision of the rule infringed, the scope of the room for assessment that the infringed rule allows for national authorities, whether the infringement and the damage caused were intentional or involuntary, whether any error of law was excusable or inexcusable, and the fact that the position taken by an EU institution may have contributed to the adoption or maintenance of national measures or practices contrary to EU law, and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU (see, to that effect, judgments of 5 March 1996 in Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 56; of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraphs 54 and 55, and of 12 December 2006 in Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 213).
26


In any event, an infringement of EU law is sufficiently serious where it was made in manifest breach of the case-law of the Court in the matter (see judgments of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraph 56; of 12 December 2006 in Test Claimants in the FII Group Litigation, C‑446/04, EU:C:2006:774, paragraph 214, and of 25 November 2010 in Fuß, C‑429/09, EU:C:2010:717, paragraph 52).
28


In that regard, it should be noted that, according to the Court’s case-law, the system of consumer protection established by Directive 93/13 involves recognition of the national court’s power to determine of its own motion whether a term is unfair (see, to that effect, judgments of 27 June 2000 in Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraphs 26, 28 and 29; of 21 November 2002 in Cofidis, C‑473/00, EU:C:2002:705, paragraphs 32 and 33, and of 26 October 2006 in Mostaza Claro, C‑168/05, EU:C:2006:675, paragraphs 27 and 28).
30


It is only in its judgment of 4 June 2009 in Pannon GSM (C‑243/08, EU:C:2009:350, paragraph 32) that the Court clearly stated that the role assigned by EU law to national courts is not limited to a mere power to rule on the possible unfairness of a contractual term falling within the scope of that directive, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task.
31


Therefore, since that judgment, the Court has repeatedly pointed out that obligation placed on the national court (see, inter alia, judgments of 14 June 2012 in Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraphs 42 and 43; of 21 February 2013 in Banif Plus Bank, C‑472/11, EU:C:2013:88, paragraph 22, and of 1 October 2015 in ERSTE Bank Hungary, C‑32/14, EU:C:2015:637, paragraph 41).
32


In particular, the Court has held that, provided the national court hearing an action for enforcement of a final arbitration award has available to it the necessary legal and factual elements, that court is required to assess of its own motion the unfair nature of the contractual terms which give rise to the debt determined in that arbitration award in the light of the provisions of Directive 93/13, when, under national rules of procedure, it must, in similar enforcement proceedings, assess of its own motion whether such terms are in conflict with national rules of public policy (see, to that effect, judgment of 6 October 2009 in Asturcom Telecomunicaciones, C‑40/08, EU:C:2009:615, paragraph 53; order of 16 November 2010 in Pohotovosť, C‑76/10, EU:C:2010:685, paragraphs 51, 53 and 54, and the judgment of 27 February 2014 in Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 42).
36


In those circumstances, the answer to the first to third questions is as follows:





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Member State liability for damage caused to individuals as a result of a breach of EU law by a decision of a national court may be incurred only where that decision is made by a court of that Member State adjudicating at last instance, which it is for the referring court to determine in respect of the main proceedings. If that is the case, a decision by that national court adjudicating at last instance may constitute a sufficiently serious breach of EU law, capable of giving rise to that liability, only where, by that decision, that court manifestly infringed the applicable law or where that infringement takes place despite the existence of well-established Court case-law on the matter.








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It cannot be concluded that a national court which, prior to the judgment of 4 June 2009 in Pannon GSM (C‑243/08, EU:C:2009:350), failed, in the context of proceedings for enforcement of an arbitration award upholding a claim for payment of debts under a contractual term which must be regarded as unfair within the meaning of Directive 93/13, to assess of its own motion whether that term is unfair, although it has available to it the legal and factual elements necessary for that purpose, manifestly disregarded the Court’s case-law on the matter and, therefore, committed a sufficiently serious breach of EU law.
38


In that regard, it should be noted that, where the conditions for a State to incur liability are satisfied, a matter which it is for the national courts to determine, it is on the basis of national law that the State must make reparation for the consequences of the loss or damage caused, provided that the conditions laid down by national law in respect of reparation of loss or damage 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) (see judgments of 19 November 1991 in Francovich and Others, C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 42; of 30 September 2003 in Köbler, C‑224/01, EU:C:2003:513, paragraph 58; of 24 March 2009 in Danske Slagterier, C‑445/06, EU:C:2009:178, paragraph 31; of 25 November 2010 in Fuß, C‑429/09, EU:C:2010:717, paragraph 62, and of 9 September 2015 in Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 50).