Horizontal liability for damages and acte clair doctrine in the light of the Laval case

Abstract: The paper analyzes the national judgment in the Laval case and argues that horizontal liability for damages is possible. Additionally, the paper shows that state liability is usually possible in the case of horizontal liability. It also touches upon the question of whether there are community rights to damages arising from the ECJ case law. At the same time, it argues that the state liability requirements arising from the Brasserie case should not be extended directly to individual liability. Instead, it offers to use different and more appropriate criteria. In addition, it examines whether the individual can be released from liability when relying on the national law and what is the amount of compensation appropriate in case of horizontal liability according to the ECJ case law. Taking into account the specifics of the Laval case, the possible solution for a clash between fundamental rights and fundamental freedoms is researched. Attention also is paid to the proportionality principle in trade union actions. The second part of this paper analyzes CILFIT requirements, especially the acte clair doctrine as grounds for a national court of last instance to refuse to refer for preliminary ruling to the ECJ. It argues that acte clair criteria were absent in the Laval case and thus the Labour Court should have referred for one more preliminary ruling to the ECJ. Also, attention is paid to the consequences of re-writing CILFIT.