Civil Law and Treaty-Based Private Claims in Europe

Jurisdiction: European Union law, the European Convention on Human Rights, and relevant international treaties

A treaty-based private claim is a legal action brought by an individual or business relying on rights arising from a treaty. Examples include an employee claiming equal pay under an EU Treaty provision, a business seeking compensation for unlawful state restrictions, or an investor invoking an investment treaty.

A treaty binding a state does not automatically give every individual a right to sue. The claimant must establish that the relevant provision protects them, can be invoked through the chosen procedure, and supports the remedy requested.

Treaty-based claims also extend beyond ordinary civil litigation. Depending on the legal instrument, proceedings may take place before national civil or administrative courts, the European Court of Human Rights, or an investment tribunal.

1. Main categories of claims

These routes have different jurisdictional rules. A provision enforceable against a government may not be enforceable against a private company.

2. Direct effect: when treaty provisions create enforceable rights

In EU law, “direct effect” means that an applicable provision can confer rights enforceable before national courts. The assessment generally considers whether the obligation is sufficiently clear, precise and unconditional.

Two forms must be distinguished:

• Vertical direct effect: reliance on a provision against the state or a qualifying public body.
• Horizontal direct effect: reliance on a provision against another private party.

Some EU Treaty provisions have horizontal effect, including provisions concerning equal pay and competition. That does not mean every Treaty article can support a private damages action. The particular provision, its scope and the requested remedy must be examined. EUR-Lex

For treaties outside the EU’s distinctive legal order, domestic constitutional rules and the treaty’s wording may determine whether implementing legislation is needed. EU direct-effect principles should not be applied automatically to every international agreement.

3. Damages against a state

A person who suffers loss from a Member State’s breach of EU law may have a compensation claim under EU state-liability principles.

The general conditions are:

1. The breached rule was intended to confer rights on individuals.
2. The breach was sufficiently serious.
3. A direct causal connection exists between the breach and the loss.

A violation alone does not automatically establish a right to damages. The claimant must identify the protected right, explain why the breach meets the seriousness requirement, and prove the resulting loss. EUR-Lex

State liability is broader than treaty provisions alone. It can also arise from breaches of EU legislation adopted under the Treaties, including failure to implement a directive.

4. Claims against private parties

Treaty-based private litigation is particularly important in employment and competition law.

For example, a worker may rely on the Treaty’s equal-pay requirement against an employer. A business or consumer harmed by an anticompetitive agreement may seek compensation from the responsible undertaking.

The Treaty provision supplies the substantive protection, while national procedures and applicable EU legislation govern matters such as evidence, limitation periods and calculation of damages. In areas governed by national procedural rules, the principles of equivalence and effectiveness limit rules that discriminate against EU claims or make their exercise practically impossible or excessively difficult. EUR-Lex

5. Relevant case laws

A. Van Gend en Loos v Netherlands Inland Revenue Administration — Case 26/62, judgment of 5 February 1963

Facts: A company challenged an increased customs charge on goods imported into the Netherlands, relying on the EEC Treaty’s prohibition against increasing customs duties.

Decision: The Court recognised that the Treaty created a legal order capable of conferring rights on individuals which national courts must protect.

Relevance: This is the foundation of direct effect in EU law. It established that a private business could invoke an applicable Treaty obligation rather than depend entirely on enforcement between states. EUR-Lex

B. Defrenne v SABENA, commonly called Defrenne II — Case 43/75, judgment of 8 April 1976

Facts: An airline employee sought protection against unequal pay based on sex.

Decision: The Court held that the Treaty’s equal-pay provision could be relied upon before national courts, including in relevant employment relationships between private parties.

Relevance: Treaty rights can affect private contracts. However, the Court also imposed a historical restriction on claims concerning pay periods before the judgment, subject to exceptions for claims already brought. The case therefore illustrates both horizontal effect and limits on its temporal consequences. EUR-Lex

C. Courage Ltd v Crehan — Case C-453/99, judgment of 20 September 2001

Facts: A publican challenged a beer-purchasing arrangement and sought damages on the basis that it infringed EU competition law.

Decision: The Court recognised that effective protection of the competition prohibition required the possibility of claiming damages for harm caused by an infringement. Participation in the agreement did not automatically bar a claim, although national law could deny recovery where the claimant bore significant responsibility for the distortion of competition.

Relevance: A Treaty-based prohibition can support civil compensation against a private undertaking. The claimant must still establish the infringement, harm and relevant causal connection. EUR-Lex

D. Francovich and Bonifaci v Italian Republic — Joined Cases C-6/90 and C-9/90, judgment of 19 November 1991

Facts: Workers suffered unpaid-wage losses after Italy failed to implement an EU directive protecting employees when employers became insolvent.

Decision: The Court recognised Member State liability for loss caused by a qualifying breach of EU law. It examined whether the directive granted identifiable individual rights and whether the failure caused the loss.

Relevance: This was a directive-based claim, rather than a direct claim under a Treaty article. Its importance here is that the Treaty-based EU legal order can require compensation even where direct enforcement of the underlying provision does not provide the necessary remedy. EUR-Lex

E. Brasserie du Pêcheur and Factortame III — Joined Cases C-46/93 and C-48/93, judgment of 5 March 1996

Facts: The proceedings concerned business losses allegedly caused by national legislation inconsistent with EU law, including German beer restrictions and British fishing-vessel registration requirements.

Decision: The Court explained the general state-liability conditions: a rights-conferring rule, a sufficiently serious breach and a direct causal link to the damage.

Relevance: A private claimant can seek compensation for legislative breaches of Treaty rights. Liability is not limited to failures to implement directives. The state’s discretion and the clarity of the breached rule matter when assessing seriousness. EUR-Lex

F. Portugal v Council — Case C-149/96, judgment of 23 November 1999

Facts: Portugal challenged EU measures concerning trade arrangements by relying on World Trade Organization obligations.

Decision: The Court held that, given their nature and structure, WTO agreements are generally not standards against which EU institutional measures can be reviewed, subject to recognised exceptions.

Relevance: Although this was not a private claimant’s action, it demonstrates an important limit: an international trade obligation does not automatically become an enforceable private right in EU courts. A business cannot assume that an alleged WTO violation alone creates a civil damages claim. EUR-Lex

G. Slovak Republic v Achmea BV — Case C-284/16, judgment of 6 March 2018

Facts: An investor obtained an arbitration award against Slovakia under a bilateral investment treaty between EU Member States.

Decision: The Court held that the relevant investor-state arbitration clause was incompatible with Articles 267 and 344 TFEU because it could remove disputes involving EU law from the EU judicial system.

Relevance: A treaty’s arbitration clause must be legally available for the particular dispute. The judgment concerns intra-EU investment arbitration; it does not establish that every investment arbitration involving a European state is prohibited. EUR-Lex

H. Republic of Moldova v Komstroy LLC — Case C-741/19, judgment of 2 September 2021

Facts: The dispute concerned judicial review in France of an Energy Charter Treaty arbitration award involving Moldova and an investor.

Decision: Among its conclusions, the Court held that the Energy Charter Treaty’s Article 26 arbitration mechanism was not applicable between an EU Member State and an investor from another Member State.

Relevance: A multilateral investment treaty does not avoid the EU-law restrictions identified in Achmea. Any proposed claim also requires a separate assessment of the treaty’s current status, covered investment, nationality and temporal application. EUR-Lex

6. European Convention on Human Rights claims

The ECHR provides a distinct treaty-based route. Individuals, qualifying organisations and groups can apply to the European Court of Human Rights alleging that a contracting state violated their Convention rights.

The respondent is the state, not a private employer, bank or neighbour. Private misconduct may nevertheless raise state responsibility where authorities failed to meet a relevant positive obligation—for example, an obligation to provide appropriate legal protection.

Applicants generally must exhaust available effective domestic remedies and comply with the four-month deadline, normally calculated from the final domestic decision. Victim status and other admissibility requirements also apply. The Strasbourg Court is not a general appeal court for every incorrect national civil judgment. Knowledge Sharing

7. Establishing a viable claim

A treaty-based claim should identify:

• The exact treaty provision and whether it applied at the relevant time.
• The claimant’s protected status and the correct defendant.
• Direct effect, domestic implementation or another enforcement mechanism.
• The competent court or tribunal.
• The breach, evidence of loss and causal connection.
• The available remedy and applicable procedural deadlines.

Different remedies require different legal foundations. A right to challenge an unlawful charge does not automatically establish entitlement to consequential business losses. Similarly, recognition of a substantive treaty right does not itself establish jurisdiction over the defendant.

The decisive issue is therefore how the treaty obligation becomes an enforceable right for this claimant, against this defendant, through this procedure.