Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 9 December 2021 (1)

Case C‑278/20

European Commission

v

Kingdom of Spain

(Failure of a Member State to fulfil obligations – Breach of EU law by the Spanish legislature – Loss or damage caused to individuals – National legislation aligning the rules on the liability of the State as legislature for breaches of EU law with the rules laid down for breaches of the Spanish Constitution by acts of the legislature – Compensation made impossible or excessively difficult – Principles of effectiveness and equivalence)

I.      Introduction

1.        The principle of State liability for loss or damage caused to individuals in breach of EU law for which the State can be held responsible is inherent in the system of the Treaties; that fact has been repeatedly asserted by the Court. (2) Individuals harmed have a right to reparation where 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 the breach and the loss or damage sustained by the individuals. (3)

2.        It must also be made clear that, subject to the right to reparation which flows directly from EU law where those 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 or 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). (4)

3.        Those two principles lie at the heart of the present infringement proceedings. By its application of 24 June 2020, the European Commission asks the Court to declare that, by adopting and maintaining in force certain provisions on the liability of the State as legislature, the Kingdom of Spain has failed to fulfil its obligations under the principles of effectiveness and equivalence, which limit the procedural autonomy (5) enjoyed by Member States when laying down the conditions governing their liability for loss or damage caused to individuals in breach of EU law.

II.    Spanish law

4.        Article 106(2) of the Spanish Constitution provides that ‘private individuals shall, under the conditions established by law, be entitled to compensation for any damage to their property or infringement of their rights, except in cases of force majeure, whenever such loss or infringement is the result of the operation of public services’.

5.        Ley orgánica 6/1985 del Poder Judicial (Organic Law 6/1985 on the judiciary) of 1 July 1985, (6) as amended by Organic Law 7/2015 of 21 July 2015, (7) provides, in Article 4a(1) thereof, that ‘judges and courts shall apply [EU] law in accordance with the case-law of the Court of Justice of the European Union’.

6.        Ley 29/1998 reguladora de la Jurisdicción Contencioso-Administrativa (Law 29/1998 governing the jurisdiction of the administrative courts) of 13 July 1998 (8) states, in Article 31 thereof:

‘1.      Applicants may request that the acts and provisions open to challenge pursuant to the previous chapter are declared unlawful and, where appropriate, annulled.

2.      They may also request that a particular legal situation is recognised and that appropriate measures are adopted to ensure that that situation is fully restored, including compensation for loss or damage, where appropriate.’

7.        Article 71(1)(d) of that law provides:

‘Where the judgment upholds the administrative-law action:

…

(d)      If an application to obtain reparation for loss or damage is allowed, the right to reparation shall be declared in all circumstances, and the person obliged to pay compensation shall also be specified. The judgment shall also set the amount of the compensation where this is expressly requested by the applicant and the case file contains sufficient evidence to do so. Otherwise, a basis shall be established for the calculation of that amount, and the final calculation shall be deferred to the period of enforcement of the judgment.’

8.        Article 110(1) of that law states:

‘In matters relating to taxation, staff of the public authorities and market unity, the effects of a final judgment that has recognised a particular legal situation in favour of one or more persons may be extended to others, pursuant to that judgment, where the following conditions are satisfied:

(a)      the interested parties are in the same legal situation as the persons benefitting from the favourable judgment;

(b)      the judge or court which made the decision also has territorial jurisdiction to hear and rule on their applications for recognition of that particular situation;

(c)      the interested parties request the extension of the effects of the judgment within a period of one year from the final service of that judgment on the persons who were parties to those proceedings. Where an appeal is lodged in the interest of the law or for revision, that period shall begin to run from the final service of the decision giving final judgment on the appeal.’

9.        Article 221 of Ley 58/2003 General Tributaria (Law 58/2003 on general taxation) of 17 December 2003 (9) provides:

‘1.      The procedure for recognition of the right to repayment of amounts unduly paid shall be initiated ex officio or at the request of the person concerned in the following situations:

(a)      where payment of tax debts or penalties has been duplicated;

(b)      where the amount paid was greater than the amount payable further to an administrative act or a self-assessment;

…’

10.      Ley 39/2015 del Procedimiento Administrativo Común de las Administraciones Públicas (Law 39/2015 on the common administrative procedure for public bodies) of 1 October 2015 (10) (‘Law 39/2015’) provides, in Article 67 thereof, which is entitled ‘Applications to initiate proceedings to establish liability’:

‘1.      Interested persons can apply for proceedings to establish liability to be initiated only if their right to seek reparation has not become time-barred. The right to seek compensation shall be time-barred one year after the event or act forming the grounds for reparation occurred or after its adverse effect occurred. In cases of physical or psychological harm caused to individuals, the period shall run from the time of recovery or from the determination of the scope of the related consequences.

…

In the cases of liability referred to in Article 32(4) and (5) of Law [40/2015], ^[(11)^] the right to seek reparation shall be time-barred one year after publication in the Boletín Oficial del Estado or in the Official Journal of the European Union, as appropriate, of the decision finding the rule to be unconstitutional or declaring it contrary to [EU] law.’

11.      Article 106(4) of Law 39/2015 provides:

‘When they declare a provision or an act to be null and void, public authorities may determine, in the same decision, the compensation to be awarded to the persons concerned, provided that the conditions laid down in [Article] 32(2) and [in Article] 34(1) of Law [40/2015] are met …’

12.      The preliminary title of Law 40/2015 includes a Chapter IV, entitled ‘Liability of public authorities’, which contains Articles 32 to 37.

13.      Article 32 of that law, which concerns the principles governing the liability of public authorities, provides:

‘1.      Individuals shall be entitled to compensation from the relevant public authorities for any damage to their property or infringement of their rights where that loss or infringement is the result of the normal or abnormal operation of public services, except in cases of force majeure or of loss or damage which, under the law, the individual is required by law to assume.

The annulment, by administrative means or by order of the administrative courts, of administrative acts or provisions shall not give rise per se to a right to reparation.

2.      In any case, the loss or damage claimed must be genuine, economically assessable and particular to a person or to a group of people.

3.      Similarly, individuals shall also be entitled to compensation from public authorities for any damage to their property or infringement of their rights arising from the application of legislative acts that are not acts ordering the expropriation of rights, which they are not required by law to assume, where the legislative acts in question so provide and subject to the conditions laid down therein.

The State as legislature can also be rendered liable in the following situations, provided that the conditions laid down in the preceding paragraphs are satisfied:

(a)      where the loss or damage stems from the application of a statutory rule declared unconstitutional, provided that the requirements referred to in paragraph 4 are met;

(b)      where the loss or damage stems from the application of a rule that is contrary to [EU] law, in accordance with the provisions of paragraph 5.

4.      If the loss or damage is the result of a statutory rule declared unconstitutional, the individual may be awarded compensation if he has obtained, before any court, a final decision dismissing an action brought against the administrative act that caused the loss or damage, provided that the individual relied on the unconstitutionality of the rule that was subsequently recognised.

5.      If the loss or damage is the result of the application of a rule declared contrary to [EU] law, the individual may be awarded compensation if he has obtained, before any court, a final decision dismissing an action brought against the administrative act that caused the loss or damage, provided that the individual relied on the breach of [EU] law that was subsequently recognised. In addition, all the following conditions must be met:

(a)      the rule of law must be intended to confer rights on individuals;

(b)      the breach must be sufficiently serious; and

(c)      there must be a direct causal link between the non-compliance with the obligation imposed on the responsible authority by [EU] law and the loss or damage suffered by the individuals.

6.      The decision finding the statutory rule to be unconstitutional or declaring it contrary to [EU] law shall have effect from its publication in the Boletín Oficial del Estado or in the Official Journal of the European Union, as appropriate, unless otherwise provided in that decision.

…’

14.      Article 34(1) of that law, which is entitled ‘Compensation’, provides:

‘…

In the cases of liability referred to in Article 32(4) and (5), loss or damage that occurred five years before the date of publication of the decision finding the statutory rule to be unconstitutional or declaring the rule contrary to [EU] law, unless otherwise provided in that decision, shall be eligible for reparation.’

III. The pre-litigation procedure

15.      Following complaints lodged by individuals, on 25 July 2016 the Commission opened an ‘EU Pilot’ procedure against the Kingdom of Spain concerning Articles 32 and 34 of Law 40/2015 and invoking a possible breach of the principles of equivalence and effectiveness. Having proved unsuccessful, that procedure was closed on 18 January 2017. The Commission then initiated infringement proceedings.

16.      By letter of 15 June 2017, the Commission gave the Kingdom of Spain formal notice to submit its comments on the Commission’s concerns relating to Articles 32 and 34 of Law 40/2015 in the light of the principles of equivalence and effectiveness. On 4 August 2017, that Member State informed the Commission of the reasons why it considered that the provisions at issue were consistent with those principles.

17.      On 26 January 2018, the Commission issued a reasoned opinion in which it set out the reasons why Article 32(3) to (6) and the second subparagraph of Article 34(1) of Law 40/2015 and the third subparagraph of Article 67(1) of Law 39/2015 were, in its view, contrary to the principles of effectiveness and equivalence, and refuted the arguments put forward by the Kingdom of Spain in its letter of 4 August 2017.

18.      By letter of 26 March 2018, following a meeting organised with the Commission’s services on 14 March 2018, the Kingdom of Spain replied to the reasoned opinion, reiterating its view that the Spanish rules on State liability comply with the principles of equivalence and effectiveness. However, by letter of 20 November 2018, that Member State informed the Commission that it had reconsidered its position and that it would shortly send draft legislation intended to bring Spanish law into compliance with the requirements of EU law. The draft was sent to the Commission on 21 December 2018.

19.      On 15 May 2019, following a further meeting organised on 18 March 2019, the Commission sent the Kingdom of Spain a document explaining that, whilst the abovementioned draft could potentially bring to an end the breach of the principle of equivalence, that was not the case as regards the principle of effectiveness.

20.      By letter of 31 July 2019, the Kingdom of Spain stated that new legislative proposals could not currently be produced as the government was dealing only with day-to-day business (Gobierno en funciones).

IV.    The procedure before the Court and the forms of order sought

21.      By an application dated 24 June 2020, the Commission requests that the Court declare that, by adopting and maintaining in force Article 32(3) to (6) and the second subparagraph of Article 34(1) of Law 40/2015 and the third subparagraph of Article 67(1) of Law 39/2015, the Kingdom of Spain has failed to fulfil its obligations under the principles of effectiveness and equivalence.

22.      The Kingdom of Spain contends that the Court should declare the action inadmissible, in so far as the Commission considers that that Member State would have to overhaul its rules on liability if the action were upheld, and dismiss the action.

23.      The Kingdom of Spain and the Commission presented oral argument at the hearing held on 11 March 2020.

V.      Analysis

A.      Admissibility

24.      In its defence, the Kingdom of Spain argues that the present action must be found to be inadmissible in so far as the Commission claims that the Spanish rules on financial liability should be overhauled in their entirety and thus broadens the subject matter of the action as determined by the reasoned opinion.

25.      It follows from the settled case-law of the Court that the subject matter of an action under Article 258 TFEU for failure to fulfil obligations is determined by the Commission’s reasoned opinion, so that the action must be based on the same grounds and pleas as that opinion. (12)

26.      It is true, as the Kingdom of Spain argues, that the Commission does claim in its application that if the Court considers the present action to be well founded, the Spanish rules will have to be overhauled in their entirety.

27.      However, I would observe that the Commission expressly identifies the provisions concerned by the present action, namely Article 32(3) to (6) and the second subparagraph of Article 34(1) of Law 40/2015 and the third subparagraph of Article 67(1) of Law 39/2015, all of which relate to the liability of the State as legislature for breach of EU law. In addition, it is quite clear from the Commission’s application that that application calls into question only the legal rules on the liability of the State as legislature and relates solely to the liability of the State as it arises from legislative acts that are contrary to EU law.

28.      In that regard, I must point out that, at the hearing, the Commission further clarified the situations concerned by the present action. Thus, the issue here is the liability of the State as legislature on account of a breach of EU law, both where the loss or damage sustained is the direct result of an act or omission by the legislature, without the interposition of an administrative act, and where it follows from the adoption by the authorities of an administrative act pursuant to a law, in cases where the authorities had in reality no leeway in adopting that act.

29.      I also note that the subject matter of the reasoned opinion was the same provisions as those concerned by the present action, and that, in that opinion, the Commission made claims similar to those set out in its application, such that the subject matter of the action cannot be found to have been broadened.

30.      It is therefore my view that there can be no doubts as to the admissibility of the present action.

B.      Substance

1.      The principle of effectiveness

31.      The Commission submits that the Spanish rules on the liability of the State as legislature for breach of EU law, as provided for in Article 32(5) of Law 40/2015, is contrary to the principle of effectiveness because it makes reparation for the loss or damage caused subject to three conditions: first, the Court must declare a legislative act to be incompatible with EU law for the State as legislature to incur liability; second, the individual harmed must have obtained, before a court, a final decision dismissing an action brought against the administrative act that caused the loss or damage before bringing the action to establish liability; and, lastly, third, the individual must have relied on the breach of EU law in the context of that previous action.

32.      The Commission adds that, first, the limitation period for an action to establish the liability of the State as legislature for breach of EU law, as provided for in Article 67(1) of Law 39/2015, and, second, the limitation of the loss or damage eligible for reparation to loss or damage suffered five years before the declaration of incompatibility, as provided for in Article 34(1) of Law 40/2015, are also two requirements that are incompatible with the principle of effectiveness.

33.      The Kingdom of Spain, however, contends, as a preliminary point, that the action must be dismissed as the Commission’s analysis of the provisions at issue was partial and incomplete. According to that Member State, the Commission should have taken account of all the Spanish rules on the liability of the public authorities for breach of EU law, as well as the broad discretion enjoyed by Member States in the organisation of their rules on State liability, in order to establish that those rules, taken as a whole, were contrary to the principle of effectiveness. (13)

34.      I will begin my analysis by examining that argument since, if it were to prove well founded, examination of the Commission’s claims concerning the breach of the principle of effectiveness solely by the provisions identified would have to be rejected.

(a)    The Commission’s focus on certain provisions

35.      The Kingdom of Spain contends that the Commission has an obligation to analyse any national provision which could prove relevant to determining whether the Spanish rules on the financial liability of the State as legislature are genuinely contrary to the principles of effectiveness and equivalence.

36.      According to that Member State, both the ‘ordinary’ (14) legal remedies and the ‘general measure’, provided for in Article 32(1) of Law 40/2015, which allows public authorities to be held liable, guarantee that individuals have effective remedies at their disposal if they suffer loss or damage as a result of a breach of EU law by the public authorities. It follows from the foregoing that Article 32(5) of that law is a supplementary provision, which provides for a specific action for individuals who, having already brought an action, have obtained an unfavourable decision which failed to take account of the incompatibility of the legal provision applied with EU law.

37.      The Kingdom of Spain argues that, by conducting a partial analysis, the Commission also reversed the burden of proof for the alleged failure to fulfil obligations.

38.      It is true that the case-law of the Court has clearly established that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its specific features, viewed as a whole, before the various national bodies, (15) and that, where more than one procedure is possible, EU law is not required to designate which is to be applied. (16)

39.      However, I do not believe that that requirement means that a systematic analysis of all the legal remedies by which the State may generally be held liable has to be conducted, even though the subject matter of the action for failure to fulfil obligations concerns only the rules on the liability of the State as legislature.

40.      I interpret that condition rather as requiring a contextual analysis of the provisions called into question, which may incidentally entail the examination of other provisions if they are relevant to the procedure at issue or have in fact the same subject matter, namely the possibility of the State being rendered liable on account of laws that are incompatible with EU law.

41.      Similarly, in order for the Commission to be alleged to have sought to favour one procedure by which the State as legislature is held liable over another, the procedures described by the Kingdom of Spain must have the same subject matter, that is to say, specifically, the liability of the State as legislature.

42.      However, in my view, that is not the case. None of the provisions invoked by the Kingdom of Spain has as its subject matter or allows, upon reading them, reparation for loss or damage caused by the State as legislature in breach of EU law.

43.      In the first place, the Kingdom of Spain contends that the ‘ordinary’ legal remedies allow compensation to be sought for the breach of EU law by the public authorities.

44.      It is true that each of those legal remedies guarantees that individuals can, in some way, obtain reparation for loss or damage caused by the authorities in general or, at the very least, the restoration of the status quo ante and the limitation of the loss or damage suffered by them, and that a claim for compensation may be made on account of a breach of EU law. However, consideration of those various remedies reveals that none of them allow the State to be held liable as legislature.

45.      First, the procedure for restitution of money paid without legal cause in tax-related matters ensures merely the restoration of a situation in the event an overpayment is made to the tax authorities and by no means allows the State as legislature to be held liable or compensation to be awarded for the loss or damage caused. In addition, I note that the scope of the procedure for restitution of money paid without legal cause, as laid down in Spanish law, is restricted ratione materiae to matters of taxation and that procedure cannot, in any case, be invoked as an ‘ordinary’ legal remedy allowing for compensation for the loss or damage caused by the State as legislature in breach of EU law.

46.      The same applies, second, as regards the procedure for extension of the effects of a judgment, the scope of which is also restricted materially. Under that procedure, and in particular areas, the effects of a final judgment that recognised a particular legal situation to the benefit of an individual may be extended to other people in the same situation. The use of that procedure as a legal remedy by which the State as legislature can be held liable therefore presupposes that an initial ruling or final judgment has already recognised the liability of the State as legislature in an identical situation. Accordingly, that legal remedy likewise cannot be regarded as an ‘ordinary’ legal remedy that ensures the effectiveness of the rules on the liability of the State as legislature, since it is intended to be exercised, in those circumstances, only where the liability of the State as legislature has already been recognised.

47.      Third, with regard to the ex officio procedure for review of administrative acts, I note, first, that it allows compensation not for the loss or damage caused by the law directly but only that loss or damage caused by administrative acts and, second, that it is entirely dependent on the will of the public authorities. In my view, that appears to preclude it from being able to have any impact whatsoever on the assessment of the rules on the liability of the State as legislature in Spain.

48.      Fourth, an administrative-law action brought against an administrative act that has caused loss or damage is also concerned specifically with the – incidental and non-systematic – possibility of obtaining reparation for loss or damage caused by administrative act. This therefore precludes the State as legislature from being held liable where the loss or damage is caused not by an administrative act but by the law directly, (17) with the result that, once again, that procedural remedy cannot be regarded as an ‘ordinary’ legal remedy that allows the State as legislature to be held liable. (18)

49.      In that regard, it is true that the Commission also refers to the situation in which the loss or damage is formally caused by an administrative act, where that act was adopted by the authorities pursuant to a law that is incompatible with EU law without them having any leeway in the adoption of that act. Such a legal remedy undoubtedly affords individuals who have suffered loss or damage as a result of that act the possibility of obtaining compensation. However, once more, in formal terms, the State as legislature is not rendered liable, but rather the administrative authority is as the body that adopted the act.

50.      The ‘ordinary’ legal remedies upon which the Kingdom of Spain bases its arguments are therefore not intended to compensate for the loss or damage caused by the State as legislature on account of a breach of EU law, but merely to allow reparation for loss or damage caused by virtue of acts adopted by the authorities on the basis of an incompatible law. The Commission cannot therefore be alleged to have conducted a partial analysis of the Spanish rules on the liability of the State as legislature by focusing solely on Article 32(3) to (6) of Law 40/2015, the only provisions relevant in that regard.

51.      In any case, I would observe that, although they do not form the subject matter of this action for failure to fulfil obligations, the other legal remedies to which the Kingdom of Spain refers are, however, factored into the Commission’s reasoning, since their pursuit is a prerequisite for the State as legislature to be held liable under Article 32(5) of Law 40/2015. Accordingly, the Commission cannot be alleged to have conducted an analysis that is blind to the context of the Spanish rules on the liability of the State as legislature for breach of EU law. (19)

52.      In the second place, the Kingdom of Spain contends that Article 32 of Law 40/2015, taken as a whole, allows the State as legislature to be held liable, such that the Commission cannot simply refer to Article 32(3) to (6) of that law and focus its arguments on the alleged breach of the principle of effectiveness on Article 32(5) of that law.

53.      According to that Member State, Article 32(1) of Law 40/2015 is the ‘general measure’ to ensure compensation for the loss or damage caused to individuals by the State as legislature on account of a breach of EU law.

54.      In that regard, I note that the position of the Kingdom of Spain has evolved somewhat in the course of the proceedings. Whereas, in its written pleadings, its arguments focus on Article 32(1) of Law 40/2015, that Member State sought to demonstrate at the hearing that the liability of the legislature was governed by Article 32(3) of that law.

55.      However, none of those arguments is persuasive.

56.      First, it is clear from its wording that Article 32(1) of Law 40/2015 allows for the compensation ‘by the relevant public authorities’ of any loss or damage sustained by individuals where that loss or damage ‘is the result of the normal or abnormal operation of the public services’. Aside from the fact that I doubt that legislative activities can be categorised simply as ‘public service activities’ and that the State as legislature can be regarded as one public authority among others, I would point out that such general wording, which refers to the liability of all public authorities, contrasts with that of Article 32(3) to (6) of that law, which is specific to the liability of the State as legislature only.

57.      If Article 32(1) of Law 40/2015 is indeed the ‘general measure’ for holding the authorities liable, the liability of the State as legislature is the subject of specific provisions which would in fact serve no purpose if that first provision were regarded as sufficient for the State as legislature to be held liable for breach of EU law. That provision cannot therefore be regarded as being intended to allow compensation for loss or damage caused by the State as legislature, since special rules governing such compensation are laid down in Article 32(3) to (6) of that law.

58.      Second, the argument that Article 32(3) of Law 40/2015 is the relevant provision to allow compensation for loss or damage caused by the State as legislature as a result of a law that is incompatible with EU law goes beyond the actual wording of that provision. The provision in fact states that individuals may be awarded compensation for any damage to their property or infringement of their rights ‘arising from the application of legislative acts …, where the legislative acts in question so provide and subject to the conditions laid down therein’. (20) It is therefore concerned not with the liability of the State as legislature for breach of EU law, but merely with the compensation by the State for loss or damage caused by a law that does not entail a breach of EU law, and on the condition that that law so provides.

59.      However, the Kingdom of Spain contends that that provision was recently interpreted by the Tribunal Supremo (Supreme Court, Spain) as allowing the State as legislature to be held liable for breach of EU law in that capacity.

60.      In that regard, it is true that the case-law of the Court has established that the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts. (21) Although the Court may therefore sometimes look beyond the literal meaning of a provision in order to determine the interpretation given by national courts, it is, however, likewise clear that isolated judicial decisions in the context of case-law taking a different direction cannot be taken into account, (22) and that where national legislation has been the subject of different relevant judicial constructions that may be taken into account, it must be held that, at the very least, such legislation is not sufficiently clear to ensure its application in compliance with EU law. (23)

61.      In line with that case-law, I am of the view that an isolated interpretation in case-law that departs from the wording of the provision interpreted cannot be taken into account and that such an interpretation would, in any case, always run the risk of obfuscating the national legislation to the point that an application compatible with EU law cannot be ensured.

62.      In addition, in support of its argument the Kingdom of Spain relies on a single judgment of the Tribunal Supremo (Supreme Court), even though that judgment supposedly constitutes a departure in the interpretation of the legislation which goes beyond what is permitted by the wording of Article 32(3) of Law 40/2015. (24) In addition, that Member State itself points out that, although the appeal was found to be admissible, it was however subsequently dismissed on the ground that the conditions laid down in that provision were not satisfied.

63.      Such an isolated example does not therefore appear to me to be sufficient to show that Article 32(3) of Law 40/2015 would allow the State as legislature to be held liable for breach of EU law, notwithstanding the fact that the conditions laid down in that provision were not satisfied.

64.      In any case, even assuming that the judgment relied upon by the Kingdom of Spain could be interpreted as allowing the legislature to be held liable on the basis of Article 32(3) of Law 40/2015, despite the conditions laid down in that provision not being met, it must be held that the national legislation would then not be sufficiently clear to allow an application compatible with EU law.

65.      In those circumstances, and since the purpose neither of the ‘ordinary’ legal remedies, nor of Article 32(1) and (3) of Law 40/2015, is for the State as legislature to be held liable for loss or damage caused to individuals by breach of EU law, the Commission cannot be alleged merely to have focussed on Article 32(5) of Law 40/2015, the only provision relevant in that regard, in order to determine whether the Spanish rules on the liability of the State as legislature for breach of EU law are consistent with the principle of effectiveness.

66.      It is therefore my view that the main argument raised by the Kingdom of Spain should be rejected. I will now examine the claims made by the Commission concerning the infringement of the principle of effectiveness by the Spanish rules on the liability of the State as legislature for breach of EU law.

(b)    The conditions laid down in Article 32(5) of Law 40/2015

67.      The Commission claims that the conditions laid down in Article 32(5) of Law 40/2015 for the State as legislature to be held liable for breach of EU law are incompatible with the principle of effectiveness. I will therefore consider those three conditions in turn with a view to determining whether they are liable to make it practically impossible or excessively difficult for compensation to be obtained for loss or damage caused by the State as legislature on account of a breach of EU law.

(1)    The condition that a judgment has previously been given by the Court declaring the legislative act incompatible with EU law

68.      The Commission points out that Article 32(5) of Law 40/2015 provides that the damages must be ‘the result of the application of a rule declared contrary to EU law’, it being clarified, in Article 67(1) of Law 39/2015, that the decision declaring the rule contrary to EU law must be published in the Official Journal of the European Union.

69.      Accordingly, since only decisions of the Court are published in the Official Journal of the European Union and, in addition, only judgments given following an action for failure to fulfil obligations can result in a declaration of incompatibility of national law with EU law, the Commission understands Article 32(5) of Law 40/2015, read in conjunction with Article 67(1) of Law 39/2015, to require that a judgment must previously have been given by the Court finding there to have been a failure to fulfil obligations in order for an action to establish the liability of the State as legislature to be brought.

70.      The Kingdom of Spain concedes that, under Article 32(5) of Law 40/2015 and Article 67(1) of Law 39/2015, a decision of the Court on a provision’s incompatibility with EU law is required for the State as legislature to incur liability, whilst clarifying that this does not necessarily have to be a judgment given further to an action for failure to fulfil obligations.

71.      It is clear from the case-law of the Court that reparation for loss or damage caused by a breach of EU law by a Member State is not conditional on the requirement that there must have been a prior finding of an infringement of EU law attributable to that State, (25) or on the requirement that the existence of such a breach must be clear from a preliminary ruling delivered by the Court. (26)

72.      The first condition under Article 32(5) of Law 40/2015, read in conjunction with Article 67(1) of Law 39/2015, which is not contested by the Kingdom of Spain and which makes the existence of a declaration of incompatibility of a legislative act with EU law published in the Official Journal a prerequisite for the State as legislature to be held liable, therefore appears to me to be manifestly contrary to the case-law of the Court and liable to make it impossible or excessively difficult in practice to obtain compensation for loss or damage caused by the State as legislature.

73.      The Kingdom of Spain however disputes that that requirement is contrary to the principle of effectiveness. It repeats, in that regard, its argument as to the existence of other legal remedies that allow the public authorities in Spain to be held liable for breach of EU law. That Member State explains that Article 32(5) of Law 40/2015 is a supplementary legal remedy, (27) which allows the State as legislature to be held liable, contrary to the force of res judicata, when actions previously brought against the contested act have been dismissed. In its view, only a judgment of the Court which has erga omnes effect can call into question the force of res judicata.

74.      In the first place, as I have observed, none of the legal remedies invoked by the Kingdom of Spain is concerned with the liability of the State as legislature for legislative acts that are contrary to EU law. Far from being a further possible means of holding the State liable, Article 32(5) of Law 40/2015 is therefore the only possibility of obtaining compensation for loss or damage caused by the State as legislature on account of a breach of EU law.

75.      In addition, and as the Commission observes, it seems to me to be inherent in the very principle of State liability for breach of EU law that that provision is intended to apply only as a last resort, if the other legal remedies at their disposal have not enabled individuals to protect the rights that they derive from EU law effectively. That characteristic of the mechanism of State liability for breach of EU law does not, however, make it a ‘supplementary’ legal remedy, such as to justify the need for a prior judgment of the Court in order for it to be implemented.

76.      In the second place, I do not see the relevance of the argument raised by the Kingdom of Spain regarding the need to protect the force of res judicata. First, nothing in the wording of Article 32(5) of Law 40/2015 suggests that its scope covers the liability of the State as legislature in a manner contrary to the force of res judicata. Second, in my view, the bringing of an action to establish the liability of the State as legislature, following the dismissal of an action brought against the act complained of, in no way undermines the force of res judicata of the judgment given at the end of the latter action.

77.      It follows from the case-law of the Court that proceedings seeking to render the State liable do not have the same purpose and do not necessarily involve the same parties as the proceedings relating to the act complained of and resulting in the decision which has acquired the status of res judicata. (28) The purpose of holding the State as legislature liable is not to allow a final judicial decision to be reviewed and the legal relationships established therein to be called into question, but rather to address the shortfalls that led to the failure to guarantee the protection of the rights derived by individuals from EU law. Although that issue does not arise in these proceedings, I note that the Court expressly affirms that fact in the case of actions to establish the liability of the State on account of a breach of EU law by a national court: the principle of res judicata does not preclude, in principle, recognition of the principle of State liability. (29)

78.      Thus, the arguments put forward by the Kingdom of Spain cannot call into question the finding that the requirement that the Court has given a judgment before the liability of the State as legislature can be established is contrary to the principle of effectiveness.

(2)    The condition that a final decision has been made rejecting an action brought by the individual harmed against the administrative act that caused the loss or damage

79.      The Commission claims that the wording of Article 32(5) of Law 40/2015, under which the individual must, before being able to bring an action on that basis, have obtained before any court a final decision rejecting an action brought against the administrative act that caused the loss or damage, is absolute and, therefore, contrary to the principle of effectiveness because it does not provide for an exception for cases in which the exercise of a prior legal remedy may present excessive difficulties, in particular where the loss or damage is caused directly by the law.

80.      According to the Kingdom of Spain, that condition stems from the need to reconcile the principle of legal certainty with that of the compensation for loss or damage caused by the State as legislature. It is likewise difficult to imagine that damage can be caused directly by a legislative act without the interposition of an administrative act. In addition, that Member State contends that that condition cannot be interpreted as requiring that legal remedies are exhausted before bringing an action based on Article 32(5) of Law 40/2015, since the wording of that article refers only to a ‘final decision’.

81.      In that regard, I would note that, as regards the liability of a Member State for breach of EU law, the national court may inquire whether the injured person showed reasonable diligence in order to avoid the loss or damage or limit its extent and whether, in particular, he or she availed himself or herself in time of all the legal remedies available to him or her. (30) Indeed, it is a general principle common to the legal systems of the Member States that the injured person must show reasonable diligence in limiting the extent of the loss or damage, or risk having to bear the loss or damage himself or herself. (31)

82.      That is precisely what is provided for in Article 32(5) of Law 40/2015, which makes the liability of the State as legislature conditional on the individual harmed having previously brought an action against the administrative act adopted pursuant to the incompatible law. By challenging, in good time, the validity of the administrative measure complained of, whether via an administrative-law action or an action for restitution of money paid without legal cause or for extension of the effects of a judgment, the individual harmed could clearly have avoided the loss or damage which he or she claims or, at the very least, limited its extent. (32)

83.      In addition, as the Kingdom of Spain observes, Article 32(5) of Law 40/2015 does not require that legal remedies are exhausted prior to an action to establish the liability of the State as legislature, but merely that an action has been dismissed by a court. The requirement to have challenged the validity of the act complained of does not mean, therefore, that the injured person has systematically availed himself or herself of all the legal remedies available and does not go beyond the diligence that may reasonably be expected of him or her in order to limit the extent of the loss or damage.

84.      That second condition concerning the implementation of the mechanism of the liability of the State as legislature for breach of EU law, as laid down in Article 32(5) of Law 40/2015, is not therefore, in my view, contrary to the principle of effectiveness where the loss or damage is formally caused by an administrative act adopted pursuant to a law that is incompatible with EU law.

85.      Furthermore, I would point out that such a condition likewise exists in relation to actions for liability of the European Union, which the Kingdom of Spain requests that the Court take into account when analysing the principle of effectiveness, since the Court has already held that an action for damages brought against the European Union is inadmissible where it concerns the same instance of illegality and has the same financial end as an application for annulment of the act of the institution which causes damage and which the injured person neglected to bring in good time. (33)

86.      The situation is, however, different where the loss or damage is caused directly by the law, without the interposition of an administrative act. As I have already explained, and contrary to what the Kingdom of Spain contends, such a scenario is easily conceivable: a law does not produce effects simply through administrative acts.

87.      It is clear from the case-law of the Court that it is consistent with the principle of effectiveness to provide that an individual cannot obtain reparation for loss or damage which he has wilfully or negligently failed to avert by using a legal remedy, provided that utilisation of that remedy can reasonably be required of the injured person. (34)

88.      As the Commission notes, the wording of Article 32(5) of Law 40/2015 does not provide for any exception to the condition that the individual harmed has already brought an action against the administrative act that caused the loss or damage, even where no such act exists, since the law itself is the direct cause of the damage. It clearly cannot reasonably be required of an individual that he or she bring an action against an act that does not exist in order for the State as legislature to be held liable on the basis of that provision.

89.      Where loss or damage is caused directly by the law, the effect of that condition is in fact to prevent any action to establish the liability of the State as legislature from being brought if the loss or damage is the direct result of the law.

90.      At the hearing, the Kingdom of Spain relied on a judgment of the Tribunal Supremo (Supreme Court), in which it was held that the State as legislature can be held liable for breach of the Spanish Constitution even in the absence of an implementing administrative act, and even though Article 32(4) of Law 40/2015 lays down the same requirement that an action must previously have been brought as Article 32(5) of that law. In addition, as I have already set out, an isolated interpretation in case-law that runs counter to the wording of the provision interpreted cannot, in my view, be taken into account and, in any event, would always run the risk of obfuscating the national legislation to the point that an application compatible with EU law cannot be ensured. This is particularly true where this involves, as the Kingdom of Spain notes, reasoning by analogy with the interpretation of a provision other than that at issue.

91.      It is therefore my view that Article 32(5) of Law 40/2015 is contrary to the principle of effectiveness because that provision always applies the blanket condition that the injured person must previously have brought an action against an administrative act, even if the loss or damage is the direct result of the law, in order for the State to be held liable as legislature for breach of EU law.

(3)    The condition that the individual harmed relied on the breach of EU law, which was subsequently recognised, in the context of the action brought against the administrative act that caused the loss or damage

92.      Article 32(5) of Law 40/2015 provides that, for the State as legislature to be held liable, there must have been reliance, in the context of the action brought against the administrative act complained of, on the breach of EU law that is subsequently recognised. In the Commission’s view, such a requirement limits the possibility of obtaining reparation for loss or damage caused by the State as legislature to cases in which the provision of EU law infringed has direct effect, which is contrary to the principle of effectiveness.

93.      According to the Commission, since only provisions having direct effect entail the obligation, on the national court, to disapply a provision of its domestic law that is contrary to those provisions of EU law, it cannot reasonably be required of harmed individuals that they rely on provisions lacking direct effect, even though such reliance would have had no impact on the outcome of the action.

94.      The Kingdom of Spain contends that the limitation of State liability for breach of EU law to provisions having direct effect has no basis in any provision of the Spanish legal system. The fact that only provisions having direct effect can entail the obligation for a national court to disapply incompatible national provisions has no impact on the possibility or the expediency of relying, in addition, on breaches of provisions of EU law lacking direct effect by national law, in the context of the action brought against the administrative act complained of.

95.      I would point out that this claim is relevant only in relation to loss or damage caused by the law with the interposition of an administrative act since, as I have demonstrated in point 83 et seq. of this Opinion, only in that situation is it consistent with the principle of effectiveness to make an action to establish the liability of the State conditional on an action having been brought against the administrative act that caused the loss or damage. Where the loss or damage is caused directly by the law, it is immaterial to determine whether it is consistent with the principle of effectiveness to require that the breach of EU law is relied upon in the course of the action brought against the administrative act complained of, since such an action quite clearly cannot be required.

96.      As the Commission observes, the Court has clearly established that a national court is not required to disapply a provision of its national law which is contrary to a provision of EU law if the latter provision does not have direct effect. (35) However, contrary to the Commission’s claim, I do not believe that that means that it would be superfluous, in the context of an action against an administrative act, to rely on the breach of provisions of EU law lacking direct effect by national provisions.

97.      It is true that reliance by the injured party on the breach by national law of a provision that does not have direct effect cannot, therefore, result in the national provisions at issue being disapplied in the context of the action brought against the administrative act complained of.

98.      However, appropriate reliance on rules of EU law before the national courts cannot be reduced simply to the ability to rely on an exclusion, as the Commission appears to suggest. Provisions of EU law lacking direct effect can, inter alia, be relied upon before national courts in the context of the obligation to interpret law in a manner consistent with EU law and have an impact on the outcome of the proceedings, even in the absence of direct effect.

99.      The Commission cannot therefore reasonably claim that the third condition imposed in order to bring an action to establish the liability of the State as legislature for breach of EU law, namely reliance on the breach of EU law in an action brought against the act complained of, has the effect of limiting the liability of the State as legislature to breaches of provisions having direct effect.

100. However, that finding does not mean that the condition that the breach of EU law must have been relied on in the context of the action against the administrative act complained of, in order for the liability of the State as legislature to be established properly, is consistent with the principle of effectiveness.

101. Article 32(5) of Law 40/2015 in fact provides that, in the context of the action previously brought, the individual must have relied on the breach of EU law ‘that is subsequently recognised’ in the decision declaring the rule contrary to EU law. Thus, not only must the individual have challenged the validity of the administrative act adversely affecting him or her, but he or she must also have correctly identified the specific provision of EU law infringed and have expected, following the logic of Article 32(5) of that law, a decision of the Court on that point.

102. Whilst it is the case that bringing an action against the act complained of, first, demonstrates that the injured person has shown reasonable diligence to avoid, or limit the extent of, the loss or damage and, second, can therefore, in that regard, be a condition for a subsequent action to establish liability, the failure to correctly identify the specific provision of EU law infringed cannot, in my view, preclude compensation for the loss or damage. An individual cannot be criticised, with the result that he or she loses his or her right to compensation for loss or damage suffered, for having failed to specify himself or herself the provision of EU law infringed by the State, even though it falls primarily to the State to ensure that its law is consistent with EU law and to the national court to apply the provisions of EU law.

103. Such a requirement would in effect therefore impose a burden on the individuals harmed that goes beyond the reasonable diligence expected of them in order to limit the extent of the loss or damage, contrary to the principle of effectiveness.

104. It follows from the foregoing that Article 32(5) of Law 40/2015 is contrary to the principle of effectiveness because that provision means that, in order for the State as legislature to be held liable, the Court must have previously found the national law to be incompatible with EU law and an action must previously have been brought against the administrative act complained of, in the context of which the breach of EU law that is subsequently recognised by the judgment of the Court has been relied on, without that provision laying down arrangements in the event that the loss or damage is caused by a legislative act without the interposition of an administrative act.

(4)    Calculation of the limitation period and limitation of the damage eligible for reparation, pursuant to Article 32(5) of Law 40/2015

105. The Commission claims that Article 67 of Law 39/2015, which provides that the right to seek compensation for loss or damage is time-barred one year after publication in the Official Journal of the European Union of the decision declaring the legislative act contrary to EU law, and Article 34(1) of Law 40/2015, which provides that only loss or damage occurring within a five-year period prior to the date of that same publication is eligible for reparation, are contrary to the principle of effectiveness.

106. In the Commission’s view, since a decision of the Court is not necessary for the State as legislature to be held liable, the provisions that make the limitation period and the loss or damage eligible for reparation dependent on such a decision of the Court are likewise contrary to EU law.

107. The Kingdom of Spain again contends that the existence of a previous judgment of the Court as a condition for the State as legislature to be held liable is not contrary to the principle of effectiveness, and therefore nor are the limitation period and limitation of the loss or damage eligible for reparation contrary to the principle of effectiveness, particularly since the duration of the periods in question is not contested by the Commission.

108. In this regard, it is sufficient to state, as I have shown in point 68 et seq. of this Opinion, that the condition laid down in Article 32(5) of Law 40/2015, which relates to the existence of a previous decision of the Court declaring the provisions of national law contrary to EU law, for the State as legislature to be held liable is contrary to the principle of effectiveness.

109. In those circumstances, both the limitation period for an action to establish the liability of the State as legislature and the limitation of the loss or damage eligible for reparation on that basis, each of which is dependent on the existence of such a decision by the Court because that decision marks the starting point for the two relevant time periods, are likewise contrary to the principle of effectiveness.

110. It follows from all the foregoing that the Spanish rules on the liability of the State as legislature for breach of EU law are, in my view, contrary to the principle of effectiveness.

2.      The principle of equivalence

111. The Commission claims that the Spanish rules on the liability of the State as legislature are contrary to the principle of equivalence because Article 32(5) of Law 40/2015 provides that, for the State as legislature to be held liable for breach of EU law, the rule of EU law infringed must be intended to confer rights on an individual and the breach must be sufficiently serious, even though those two conditions are not required for an action to establish the liability of the State as legislature for breach of the Spanish Constitution. An action to establish the liability of the State as legislature for breach of EU law is therefore subject to less favourable conditions than an action to establish the liability of the State as legislature for breach of the Spanish Constitution, which is provided for in Article 32(4) of Law 40/2015, even though the two actions are equivalent.

112. The Kingdom of Spain contends that the principle of equivalence does not require a Member State to extend its most favourable domestic rules to all actions brought in a particular area of law and that the application of the principle of equivalence therefore assumes that the actions are similar, in that they have a similar purpose and cause. In its view, that is not the case. That Member State contends, lastly, that, even if the actions were found to be similar, Article 32(5) of Law 40/2015 simply codifies the requirements established by the case-law of the Court and, in any case, those requirements are inherent in the rules on the liability of the State as legislature on grounds of unconstitutionality.

113. It is true that 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. (36)

114. In order to determine whether the principle of equivalence has been complied with, it is therefore necessary first of all to examine whether, in the light of their purpose, their cause and their essential characteristics, the action for damages brought against the State as legislature alleging breach of EU law and that alleging that a legislative act is unconstitutional may be regarded as similar. (37)

115. With regard specifically to the two actions to establish the liability of the State as legislature at issue, the Court has already responded in the affirmative. An action for damages brought against the State as legislature alleging a breach of the Spanish Constitution and such an action alleging breach of EU law have the same purpose, namely compensation for the loss or damage, and the same cause of action, namely the infringement of a superior rule of law. (38) In addition, the Court has clarified that the only difference between the two actions, namely that the breaches of law on which they are based are established, in respect of one, by the Court and, in respect of the other, by a judgment of the Tribunal Constitucional (Constitutional Court, Spain), cannot alone suffice to establish a distinction between those two actions in the light of the principle of equivalence. (39)

116. Since the Kingdom of Spain does not put forward, in that connection, any new arguments capable of altering that assessment, it must be held that the same solution should be applied in the present case. Accordingly, in my view, the two actions may be regarded as similar.

117. Lastly, the Kingdom of Spain contends, inter alia, that Article 32(5) of Law 40/2015 simply codifies the case-law of the Court on the conditions required for the State to be held liable for the loss or damage caused to individuals in breach of EU law.

118. This appears to me to be a crucial factor.

119. Article 32(5) of Law 40/2015 faithfully reproduces the three requirements established by the case-law of the Court necessary in order to give rise to a right to reparation on the part of individuals for breach of EU law by the State. It is the satisfaction of those three conditions, which require that the rule of law infringed is intended to confer rights on individuals, that the breach is sufficiently serious and that there is a causal link between the breach and the loss or damage sustained, which renders the State liable and gives rise to the obligation to provide reparation for the loss or damage caused. If one of those conditions is not met, there is no right to reparation on the basis of EU law.

120. Only once the existence of such a right has been established, by virtue of the satisfaction of those three conditions, is it for the State to provide reparation for the loss or damage caused, within the context of national law and subject to conditions which comply with the principles of effectiveness and equivalence.

121. Those three conditions, which are necessary and sufficient to found a right in favour of individuals to obtain redress, (40) are therefore relevant, in my view, before consideration of the issue relating to the effectiveness and the equivalence of the conditions laid down in national law, which seek merely to govern the exercise of that right. It is indeed national law which governs the – procedural and substantive – arrangements for exercising the right to reparation, as well as the substance of that right, which may also vary according to the conditions laid down by national law (for instance, the type of loss or damage in respect of which compensation must be paid), subject to compliance with the principles of effectiveness and equivalence. The very existence of that national law is, however, exclusively governed by EU law, as otherwise the uniform application of EU law in the legal systems of the Member States may be compromised.

122. In other words, the principle of equivalence is relevant only once the right to reparation arises, subject to the conditions laid down in the case-law of the Court and reproduced in Article 32(5) of Law 40/2015. That principle cannot, however, form the basis of the obligation on the Member States to allow a right to reparation to arise that is subject to more favourable conditions than those provided for in the case-law of the Court.

123. In that regard, the Commission points out that the Court has held that EU law does not at all rule out the possibility of a State being liable for a breach of EU law in less restrictive conditions. In addition, I am bound to observe that the Court has clarified that a State may be held liable for a breach of EU law in less restrictive conditions ‘on the basis of national law’. (41) In such circumstances, the existence of a right to reparation in a situation that does not involve a sufficiently serious breach of a rule conferring rights on individuals is therefore not based on EU law and the exercise of that right cannot therefore be subject to the principles of effectiveness and equivalence.

124. In those circumstances, the fact that an action to establish the liability of the State as legislature on account of a breach of the Spanish Constitution is not conditional on the existence of a sufficiently serious breach of a rule of law conferring rights on individuals, unlike an action to establish the liability of the State as legislature on account of a breach of EU law, cannot entail an infringement of the principle of equivalence, since that principle does not apply in such a situation.

125. Therefore, for all the reasons set out, I am of the view that the rules on the liability of the State as legislature for breach of EU law do not infringe the principle of equivalence.

C.      Costs

126. Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Pursuant to Article 138(3) of those rules, where each party succeeds on some heads and fails on others, the parties shall bear their own costs.

127. In the present case, since the Commission and the Kingdom of Spain have each failed on certain heads of claim, they will have to bear their own costs.

VI.    Conclusion

128. In the light of all the foregoing, I propose that the Court should:

–        Declare that, by adopting and maintaining in force Article 32(3) to (6) and Article 34(1) of Ley 40/2015 de Régimen Jurídico del Sector Público (Law 40/2015 on the legal rules governing the public sector) of 1 October 2015 and Article 67(1) of Ley 39/2015 del Procedimiento Administrativo Común de las Administraciones Públicas (Law 39/2015 on the common administrative procedure for public bodies) of 1 October 2015, the Kingdom of Spain has failed to fulfil its obligations under the principle of effectiveness, which limits the procedural autonomy enjoyed by Member States when laying down the conditions governing their liability for the loss or damage caused to individuals in breach of EU law;

–        Dismiss the action as to the remainder;

–        Order the European Commission and the Kingdom of Spain each to bear their own costs.

1      Original language: French.

2      Judgments of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428, paragraph 35); of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 31); of 23 May 1996, Hedley Lomas (C‑5/94, EU:C:1996:205, paragraph 24); and of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraph 29).

3      Judgments of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 51); of 23 May 1996, Hedley Lomas (C‑5/94, EU:C:1996:205, paragraph 25); and of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraph 30).

4      Judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 58), and of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraph 31).

5      It being understood that the expression ‘procedural autonomy’ refers to both procedural conditions in the strict sense and substantive conditions.

6      BOE No 157 of 2 July 1985, p. 20632.

7      BOE No 174 of 22 July 2015, p. 61593.

8      BOE No 167 of 14 July 1998, p. 23516.

9      BOE No 302 of 18 December 2003, p. 23186.

10      BOE No 236 of 2 October 2015, p. 89343.

11      Ley 40/2015 de Régimen Jurídico del Sector Público (Law 40/2015 on the legal rules governing the public sector) of 1 October 2015 (BOE No 236 of 2 October 2015, p. 89411) (‘Law 40/2015’).

12      Judgments of 17 April 2018, Commission v Poland (Białowieża Forest) (C‑441/17, EU:C:2018:255, paragraph 65); of 3 June 2021, Commission v Germany (Limit values – NO2) (C‑635/18, not published, EU:C:2021:437, paragraph 47); and of 24 June 2021, Commission v Spain (Deterioration of the Doñana natural area) (C‑559/19, EU:C:2021:512, paragraph 160).

13      On several occasions in its pleadings, the Kingdom of Spain contends that a complete analysis of those rules is also necessary in order to establish whether there is a breach of the principle of equivalence. However, first, it is clear from the substance of the arguments put forward by that Member State that such an overall analysis would simply have demonstrated the effectiveness of the rules at issue. Second, I would point out that the Commission’s claim regarding the breach of the principle of equivalence is solely based on a comparison between actions to establish State liability brought on account of an unconstitutional law, as provided for in Article 32(4) of Law 40/2015, and actions to establish State liability brought on account of an incompatible law, as provided for in Article 32(5) of that law. An analysis of all the provisions of the Spanish legal system concerning reparation for loss or damage caused by the public authorities is therefore immaterial in that regard. I have therefore chosen to link that argument raised by the Kingdom of Spain solely to my examination as to whether or not there is a breach of the principle of effectiveness.

14      Namely an administrative-law action against the act that caused the loss or damage, the ex officio procedure for review of administrative acts, the procedure for restitution of money paid without legal cause in tax-related matters and the procedure for extension of the effects of a judgment in matters of taxation.

15      Judgments of 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria (C‑224/19 and C‑259/19, EU:C:2020:578, paragraph 85); of 20 May 2021, X (LPG road tankers) (C‑120/19, EU:C:2021:398, paragraph 72); and of 10 June 2021, BNP Paribas Personal Finance (C‑776/19 to C‑782/19, EU:C:2021:470, paragraph 28).

16      Judgment of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 130).

17      The Kingdom of Spain contends on several occasions that it is difficult for loss or damage to be caused by an act of the legislature without any administrative act implementing it, and therefore proceedings brought against the administrative act might be sufficient to allow individuals to obtain reparation for the loss or damage suffered by them on account of law that is incompatible with EU law. However, the case-law of the Court points to the contrary, and the seminal judgments on State liability for breach of EU law are specifically concerned with a failure to transpose or the defective transposition of directives by the legislature which caused loss or damage to individuals.

18      In that connection, I note that the Commission also understands the liability of the State as legislature to cover situations in which the loss or damage is caused by an administrative act, adopted pursuant to a law, where the authorities had no discretion in the adoption of that act.

19      I will deal with this question in greater deal when I consider the claims relating to the principle of effectiveness made by the Commission. See point 67 et seq. of this Opinion.

20      Emphasis added.

21      Judgments of 18 July 2007, Commission v Germany (C‑490/04, EU:C:2007:430, paragraph 49), and of 16 September 2015, Commission v Slovakia (C‑433/13, EU:C:2015:602, paragraph 81).

22      Judgment of 9 December 2003, Commission v Italy (C‑129/00, EU:C:2003:656, paragraph 32).

23      Judgment of 9 December 2003, Commission v Italy (C‑129/00, EU:C:2003:656, paragraph 33).

24      In this connection, I note that that Member State has not clarified whether the judgment in question is a judgment in cassation for the purposes of unifying case-law, which cannot be shown by the mere fact that it was given by the Tribunal Supremo (Supreme Court), since – as the Member State observes – the Tribunal Supremo (Supreme Court) is the only court called upon to hear and rule on claims relating to the liability of the State as legislature.

25      Judgment of 24 March 2009, Danske Slagterier (C‑445/06, EU:C:2009:178, paragraph 37).

26      Judgment of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraph 38).

27      It even categorises that legal remedy as ‘residual’, but backtracked on the use of that term at the hearing.

28      See, to that effect, judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 39).

29      Judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraph 40); of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 58); and of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe (C‑620/17, EU:C:2019:630, paragraph 64).

30      Judgments of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 84), and of 24 March 2009, Danske Slagterier (C‑445/06, EU:C:2009:178, paragraph 60).

31      Judgments of 5 March 1996, Brasserie du pêcheur and Factortame (C‑46/93 and C‑48/93, EU:C:1996:79, paragraph 84), and of 24 March 2009, Danske Slagterier (C‑445/06, EU:C:2009:178, paragraph 61).

32      See, in this regard, Opinion of Advocate General Poiares Maduro in Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2009:437, point 19 et seq.).

33      Judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others (C‑310/97 P, EU:C:1999:407, paragraph 59).

34      Judgment of 24 March 2009, Danske Slagterier (C‑445/06, EU:C:2009:178, paragraph 69).

35      Judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 68).

36      Judgments of 15 September 1998, Edis (C‑231/96, EU:C:1998:401, paragraph 36); of 1 December 1998, Levez (C‑326/96, EU:C:1998:577, paragraph 41); and of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraph 33).

37      Judgment of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraph 35).

38      Judgment of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraph 36). On this point, see also Opinion of Advocate General Poiares Maduro in Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2009:437, point 30).

39      Judgment of 26 January 2010, Transportes Urbanos y Servicios Generales (C‑118/08, EU:C:2010:39, paragraphs 43 and 44).

40      Judgment of 29 July 2019, Hochtief Solutions Magyarországi Fióktelepe (C‑620/17, EU:C:2019:630, paragraph 37).

41      Judgment of 25 November 2010, Fuß (C‑429/09, EU:C:2010:717, paragraph 66).

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