The Action for Damages as a Fundamental Rights Remedy

Abstract

The EU remedies system offers individuals three direct avenues to access the Court of Justice of the EU: the action for annulment, the action for failure to act, and the action for damages. Legal scholarship has focused on the handicaps and promises of the action for annulment as the primary avenue to ensure remedies for fundamental rights violations in the EU legal order. Perceived as a vehicle to recover economic loss, the action for damages has received much less attention. This chapter explores the action for damages as a remedy for fundamental rights violations committed by the EU. Especially considering the shortcomings of the other direct avenues to the CJEU, this mechanism is essential to ensure full compliance with the right to an effective remedy within the EU legal order. Its potential lies in its accessibility to individuals as well as its substantive flexibility that leaves significant room for the CJEU to craft a liability regime suitable to the EU. Yet, the action for damages is currently not very effective as an avenue for a fundamental rights remedy. This is largely due to two factors: the Court’s insistence on the sufficiently serious breach test and the limits to the establishment and enforcement of joint liability. To ensure full compliance with the right to an effective remedy, the CJEU may rely on Article 47 of the Charter and the approaches adopted in national liability laws to develop a fundamental rights specific regime for damages liability. Alternatively, a fundamental rights specific liability regime may also be achieved through secondary legislation.

Keywords: Action for damages, Liability, Fundamental Rights, Sufficiently Serious Breach, Joint Liability