The requirement of a «sufficiently established infringement» in light of the current situation regarding state liability

Abstract

When the Spanish legislature enacts a law that is contrary to European Union law, individuals who have suffered harm may claim compensation from the State under the principle of the State’s financial liability. For such a claim to succeed, the Court of Justice of the European Union requires, amongst other conditions, that the infringement of EU law be «sufficiently established», that is to say, manifest and serious. To this end, the Court has established a series of criteria for its assessment. However, in recent years it has become apparent that the Spanish Supreme Court has been applying an excessively restrictive interpretation of these criteria, adding elements unrelated to EU case law and systematically rejecting claims for compensation, which in practice closes the door on affected individuals. This situation highlights the need for greater consistency between national and EU case law.