by Alessandra Silveira, Editor
and Sophie Perez Fernandes, Junior Editor
▪
In the recent Ferreira da Silva ruling[1], the ECJ was given the opportunity to assess the compliance of the applicable Portuguese legal regime of State liability for damages caused in the exercise of judicial functions with the principles of EU law on State liability.
The facts of the main proceedings took place in 1993[2] and concerned the wound up of a company. After the dissolution, ninety-seven workers brought proceedings to challenge the collective redundancy. These proceedings first took place before the Tribunal de Trabalho de Lisboa (Lisbon Labour Court), and were subject to an appeal, first before the Tribunal da Relação de Lisboa (Lisbon Court of Appeal) and then (an appeal of cassation) before the Supremo Tribunal de Justiça (Supreme Court of Justice, henceforth STJ). Some of the applicants asked the STJ to make a reference for a preliminary ruling to the ECJ. The problem concerned the interpretation of the concept of ‘transfer of a business’ within the meaning of the Directive 2001/23[3]. The STJ denied the requests considering that there were no doubts regarding the interpretation of the relevant provisions of EU law that could justify the reference for a preliminary ruling[4]. The reasoning of the STJ, the court adjudicating at last instance, was based on the Cilfit ruling[5].
Unsatisfied, the applicants brought proceedings regarding the non-contractual civil liability of the State, arguing that, in its decision, the STJ (i) had erroneously interpreted the concept of ‘transfer of a business’ within the meaning of the Directive 2001/23 and (ii) had not made a reference for a preliminary ruling to the ECJ when such a reference was mandatory under Article 267/3 TFEU[6]. In turn, the Portuguese State argued that, under Article 13/2 of the non-contractual civil liability of the State and other public bodies’ regime (RRCEE)[7], a claim for damages must be based on the prior setting aside, by the court having jurisdiction, of the decision that caused the loss or damage. Therefore, as the decision of the STJ had not been set aside, the damages sought were not payable[8].
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