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  • 2 - The Action for Damages as a Fundamental Rights Remedy

  • from Part I - Remedies before the CJEU
  • Edited by Melanie Fink, Leiden University
  • Book:
    Redressing Fundamental Rights Violations by the EU
    Print publication:
    12 December 2024, pp 36-63
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  • Summary

    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 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.