Nikolay Kantarev v Balgarska Narodna Banka.
Date: 2018-10-04
In that regard, in the first place, the procedure provided for in Article 267 TFEU is a means of cooperation between the Court of Justice and national courts. It follows that it is for the national courts alone which are seised of the case and are responsible for the judgment to be delivered to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court (judgment of 2 March 2017, Pérez Retamero, C‑97/16, EU:C:2017:158, paragraph 20 and the case-law cited).
Consequently, where questions submitted by national courts concern the interpretation of a provision of European Union law, the Court is, in principle, obliged to give a ruling (judgment of 2 March 2017, Pérez Retamero, C‑97/16, EU:C:2017:158, paragraph 21 and the case-law cited).
Nevertheless, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it (judgment of 2 March 2017, Pérez Retamero, C‑97/16, EU:C:2017:158, paragraph 22 and the case-law cited).
In the second place, as regards the line of argument based on the judgment of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606), Article 267 TFEU always allows a national court, if it considers it desirable, to refer questions of interpretation to the Court (judgment of 26 May 2011, Stichting Natuur en Milieu and Others, C‑165/09 to C‑167/09, EU:C:2011:348, paragraph 52 and the case-law cited). Thus the relevance and scope of that judgment must be examined in the course of the analysis of the substance of the questions referred.
That interpretation is borne out by the twofold objective pursued by Directive 94/19. In that regard, it should be noted that that directive is intended, as its first and fourth recitals indicate, both to protect depositors and to ensure the stability of the banking system, by preventing massive withdrawal of deposits not only from a credit institution in difficulties but also from healthy institutions following a loss of public confidence in the soundness of the banking system (judgment of 22 March 2018, Anisimovienė and Others, C‑688/15 and C‑109/16, EU:C:2018:209, paragraph 83).
In that regard, it should be noted that, according to settled case-law, the principle of State liability for loss and damage caused to individuals as a result of breaches of European Union law for which the State can be held responsible is inherent in the system of the treaties on which the European Union is based (judgment of 26 January 2010, Transportes Urbanos y Servicios Generales, C‑118/08, EU:C:2010:39, paragraph 29 and the case-law cited).
Thus, it is for each Member State to ensure that individuals obtain reparation for loss and damage caused to them by non-compliance with EU law, whichever public authority is responsible for the breach and whichever public authority is in principle, under the law of the Member State concerned, responsible for making reparation (judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 46 and the case-law cited).
In addition, the Court has repeatedly held, 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, 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 (judgment of 28 July 2016, Tomášová, C‑168/15, EU:C:2016:602, paragraph 22 and the case-law cited).
It also follows from settled case-law that it is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of EU law, in accordance with the guidelines laid down by the Court for the application of those criteria (judgments of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 48 and of 19 June 2014, Specht and Others, C‑501/12 to C‑506/12, C‑540/12 and C‑541/12, EU:C:2014:2005, paragraph 100).
As to whether Article 1(3)(i) of Directive 94/19 has direct effect, although such a condition is not required by the case-law for the purposes of holding a Member State liable for a breach of EU law (see, by analogy, judgment of 5 March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraphs 21 and 22), the referring court nevertheless states that if that provision has direct effect, the BNB breached EU law by failing to apply it in lieu of the national legislation transposing Directive 94/19.
In that regard, it must be stated that, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by individuals against the Member State where the latter has failed to transpose the directive into domestic law by the end of the period prescribed or where it has failed to transpose it correctly (judgment of 25 June 2015, Indėlių ir investicijų draudimas and Nemaniūnas, C‑671/13, EU:C:2015:418, paragraph 57).
In those circumstances, it is clear that Article 1(3)(i) of Directive 94/19 constitutes a rule of EU law intended to confer rights on individuals.
As regards the condition in respect of there being a sufficiently serious breach of EU law, it should be noted that, according to the Court’s case-law, such a breach implies a manifest and grave disregard by the Member State for the limits set on its discretion. The factors which may be taken into consideration in that regard include, inter alia, the clarity and precision of the rule breached, the measure of discretion left by that rule to the national authorities, whether any error of law was excusable or inexcusable, whether the infringement and the damage caused was intentional or involuntary, or the fact that the position taken by an EU institution may have contributed towards the omission, adoption or retention of national measures or practices contrary to EU law (see, to that effect, judgment of 5 March 1996, Brasserie du pêcheurandFactortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 56).
It should be noted from the outset that, according to the Court’s case-law, the three conditions referred to in paragraph 94 above are sufficient to give rise to a right to reparation for individuals (judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 65 and the case-law cited).
It follows that, while EU law does not at all rule out the possibility of a State being liable in less restrictive conditions on the basis of national law, it precludes, by contrast, additional conditions from being imposed under national law in that regard (judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 66 and the case-law cited).
It should also be noted that, in the absence of EU legislation in the field, it is for the internal legal order of each Member State to designate the competent courts and lay down detailed procedural rules for legal proceedings intended to safeguard the rights which individuals derive from EU law (judgment of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 46 and the case-law cited).
However, the Court has also made clear that, subject to the right to reparation which flows directly from EU law where the relevant necessary 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 and 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) (judgment of 26 January 2010, Transportes Urbanos y Servicios Generales, C‑118/08, EU:C:2010:39, paragraph 31 and the case-law cited).
The principle of equivalence requires that all the rules applicable to actions apply without distinction to actions alleging infringement of EU law and to similar actions alleging infringement of national law (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 50 and the case-law cited).
According to the principle of effectiveness, national procedural rules must not be such as to render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (judgment of 15 March 2017, Aquino, C‑3/16, EU:C:2017:209, paragraph 52 and the case-law cited).
As regards the condition laid down in the Law on Obligations and Contracts requiring the applicant in the main proceedings to provide proof of wrongdoing, the Court has already held that, while certain objective and subjective factors connected with the concept of ‘fault’ under a national legal system may be relevant, in the light of the case-law referred to in paragraph 105 above, for the purpose of determining whether or not a given breach of EU law is sufficiently serious, the obligation to make reparation for loss or damage caused to individuals cannot depend upon a condition based on any concept of fault going beyond that of a sufficiently serious breach of EU law (judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 67 and the case-law cited).
As regards national procedural rules, it should be noted that the matter of whether the jurisdiction of a national court and the procedure for disposing of a case must depend on the nature of the public authority responsible for the breach and of the alleged action or failure to act falls within the procedural autonomy of the Member States (see, to that effect, judgment of 30 September 2003, Köbler, C‑224/01, EU:C:2003:513, paragraph 47).
In that regard, it should be borne in mind that every case in which the question arises as to whether a rule of national procedure makes the exercise of rights conferred on individuals by the legal order of the European Union impossible or excessively difficult must be analysed by reference to the importance of that provision in the proceedings as a whole, the way in which the proceedings are conducted and the special features of that provision, before the various national bodies (see, to that effect, judgment of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraph 36).
Account must also be taken of the amount of the fee which must be made and whether or not that fee might represent an insurmountable obstacle to access to the courts (see, by analogy, judgment of 22 December 2010, DEB, C‑279/09, EU:C:2010:811, paragraph 61).
In that regard, it must be pointed out that, with regard to the use of the available legal remedies in order to establish the liability of a Member State for breach of EU law, the Court has previously held that national courts may enquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, inter alia, he availed himself in time of all the legal remedies available to him (judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 75 and the case-law cited).
It is a general principle common to the legal systems of the Member States that the injured party must show reasonable diligence in limiting the extent of the loss or damage, or risk having to bear the loss or damage himself (judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 76 and the case-law cited).
However, it is clear from the case-law that it would be contrary to the principle of effectiveness to oblige injured parties to have recourse systematically to all the legal remedies available to them even if that would give rise to excessive difficulties or could not reasonably be required of them (judgment of 25 November 2010, Fuß, C‑429/09, EU:C:2010:717, paragraph 77 and the case-law cited).
Thus, the duty to seek prior annulment of the administrative measure which caused the harm is not, per se, contrary to the principle of effectiveness. However, such a duty may make it excessively difficult to obtain reparation for the loss or damage caused by the infringement of EU law if, in practice, that annulment is precluded (see, to that effect, judgment of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraph 51) or highly circumscribed.