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EU Law Restitution Revisited: In Search of Lost Criteria
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Social Sciences, Department of Business Studies. (Handelsrätt)ORCID iD: 0000-0002-2302-0392
2017 (English)In: Market and competition law review, ISSN 2184-0008, Vol. 1, no 2, p. 101-139Article in journal (Refereed) Published
Abstract [en]

Since Francovichit seems the damages remedy has become The Remedy for individuals sufferingeconomic loss by reason of EU law infringements by Member States. There ishowever an alternative to damages in private enforcement of EU law, in fact anantecedent to Francovich: Restitutionby reason of a breach of EU law. Nonetheless, the criteria for restitution froma Member State, by reason of its breach of EU law, still remain neglected incomparison to the close attention and debate surrounding the criteria for thedamages action against Member States. The purpose of this contribution is thusto identify and to discuss the distinctive elements of restitution as a remedyin the event of a breach of EU law by a Member State. Focus is on the verycriteria that constitute legal basis for a claim of restitution from a MemberState under EU law and the extent to which those criteria should be governed byEU law or by national law. Less attention is devoted to exceptions fromliability to make restitution, although their existence in the case law is dulynoted. The criteria identified in the case law are (1) the existence of asubstantive right conferred on the claimant by EU law, (2) the existence of apayment from the claimant, collected by or on behalf of the Member State, (3)the incompatibility of the basis of that payment with EU law, and (4) that thepayment follows as an inevitable consequence of the breach of EU law by theMember State. Case law hints on the more precise legal content of the criteria areexamined in an attempt to shed light on their proper interpretation andapplication. It is noted that the second and third criteria cannot, on thebasis of existing case law, be defined with precision. In that connection it isdiscussed whether the second criterion should be subdivided into two criteria:Impoverishment of the claimant and enrichment of the Member State. As regardsto the fourth criterion it is noted that it is uncertain whether it applies atall. Finally it is submitted that some of the difficulties could be overcome ifthe Court of Justice were to distinguish clear cases of repayment of chargeslevied by a Member State institution or agency in breach of EU law from moredifficult cases of possible liability by reason of the unjust enrichment ofMember States.

Place, publisher, year, edition, pages
Porto: Universidade Católica Editora , 2017. Vol. 1, no 2, p. 101-139
Keywords [en]
EU law, Restitution, Member State liability, criteria, recovery of unlawful charges
Keywords [sv]
EU-rätt, restitution, betalningsskyldighet för medlemsstat, rekvisit, återbetalning av olagliga skatter och avgifter
National Category
Law
Research subject
European (Integration) Law
Identifiers
URN: urn:nbn:se:uu:diva-329066OAI: oai:DiVA.org:uu-329066DiVA, id: diva2:1139326
Available from: 2017-09-07 Created: 2017-09-07 Last updated: 2017-11-27

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