State liability for violation of European Union law—a Polish perspective

Nina Półtorak

doi:10.1007/s12027-012-0255-y

Abstract

State liability for damage incurred as result of violation of European Union law is by now a well-established principle of European Union law. It is a principle still encapsulated in case law, the member states having chosen not to incorporate it into the primary law of the European Union. The principle has influenced national rules on the liability for damages and the case-law of national courts. This article aims to provide an overview of such influence on the Polish law concerning state liability. This process is visible in Polish law. However as will be indicated, the influence has been insufficient to guarantee either compliance of Polish legislation with European Union law or compliance with the principle of the effectiveness of Union law. This also relates to the case-law of Polish courts, as surprisingly, the European Union principle of liability for damages has enabled the courts to limit and restrict the interpretation of Polish law provisions. Yet so far there has been no case-law enabling the principle to be used to support the approach of Polish law under which the adoption of rules of liability favorable to the aggrieved party is enabled.

Highlights

In the explanatory statement regarding the 2010 amendments to the provisions of the Civil Code and the Code of Civil Procedure referring to liability for state authorities,7 it was stated explicitly that the matters it regulated were not subject to European Union law, which may be considered true only if we understand “European Union law” in a very strict way as excluding the case-law of the European Court of Justice
If we identify in Polish law some prerequisites for state liability that do not comply with those just indicated or some provisions regulating pursuit of claims which do not meet the requirements of equivalence and effectiveness, Polish law will not fulfill the obligations imposed by European Union law
Art. 4241a §1 and 2] of the article in question, a little enigmatic—in the opinion of the Senate, stipulate that in the cases when there is no complaint available, compensation may be claimed without a prior declaration of the unlawfulness of the judgment. It may be concluded on the basis of such formulation of the added Art. 4241a §3 that it only refers to the judgments issued by the Supreme Court, whereas, according to the argumentation provided in the explanatory statement of the bill, it is a provision of fundamental significance, applicable to all final judgments against which there is no complaint available, issued on the grounds of the Code of Civil Procedure

Summary

The European Union principle of state liability

It is not permitted to substitute the prerequisites set out by the Court with national ones or to apply, in addition to the European Union conditions for state liability, domestic ones which do not fulfill the requirement of effectiveness and equivalence of protection (with the exception of situations when the state liability in the national law is based on less restrictive conditions) This is confirmed in the case-law of the European Court of Justice, according to which “a right to obtain redress will arise where it has been established that the rule of law infringed is intended to confer rights on individuals and there is a direct causal link between the sufficiently serious breach of the obligation relied on and the loss or damage sustained by the injured party, since those conditions are necessary and sufficient to found a right for individuals to obtain redress”.3. These laws must meet the conditions of non-discrimination (equivalence) and effectiveness.

Basis of state liability in Polish law

Need for specific regulation of state liability?

Preliminary procedure in the case of liability in respect of court decisions

Different provisions on liability for civil and administrative courts

Appropriate proceedings in the case of liability for legislative acts

Conclusion