The Concept of Concurrent Liability and its Relationship with the Principle of Effectiveness: A One-Way Ticket into Oblivion?

Abstract

It is a truth universally acknowledged that a person upon whom a right is conferred must be entitled to a remedy to adequately safeguard this right. However, it is axiomatic that the availability of a remedy by itself is not sufficient: what is also needed if the existence of a remedy is not to be rendered nugatory, is a remedy which is first and foremost effective in providing redress. In the context of EC law, the case law of the Court of Justice (ECJ) acknowledges this.¹ Particularly in relation to the availability of remedies at the national level to protect Community law rights, the Court has developed the principles of effectiveness and equivalence as the two conditions which always have to be met before it will consider a remedy Euro-compatible. In this article, however, the emphasis will be on the remedies present at the Community level, to be more precise, on the remedy of concurrent liability. The concept applies to the situation where there are two parties which can jointly and severally be held liable for the damage their (in)action has caused another party. In the context of Community law, this translates to the joint liability of the Community and one or more Member State(s) for the losses occasioned to an individual. The concept of concurrent liability will be examined to determine its (un?)conformity with the principle of effectiveness as it has developed within EC law. It has to be stressed here that the available literature on concurrent liability is unfortunately rather limited, as well as of considerable age. All opinions expressed are therefore predominantly based on a critical review of the existing case law.