Rights without Duties? Reflections on the State of Liability Law in the Multilevel Governance System of the Community: Is There a Need for a More Coherent Approach in European Private Law?

Abstract

The paper argues that some general Community standards for “horizontal liability” among private parties can be established already now. The basic requirement is a “sufficiently serious”, not necessarily negligent violation of an EU (including always EC) law provision intending to protect private parties, in particular under the free movement, non-discrimination, and investor protection rules. Remedies for compensation (injunctions were discussed only in passing) must be found under national law, but this must obey to the principles of effectiveness and equivalence which may be summarised as the principle of “adequate protection”. The existing national remedies must eventually be reshaped and “upgraded” if they do not meet EU standards. This will lead to a “hybridisation of remedies” which could be shown in the basic requirements of “sufficiently serious breach”, causation, amount of compensation, and adequate procedures.