«Igualar por abajo»

La doctrina del Tribunal Supremo sobre la responsabilidad del Estado derivada de la ley contraria al Derecho comunitario y de la ley inconstitucional

Abstract

This paper commences with a critical analysis of the Supreme Court doctrine according to which acts of enforcement of a specific law are not required to have been previously challenged in order to claim liability (damages) of State legislature that is derived from a subsequent declaration of the unconstitutionality of this law. Bearing this in mind, the conclusion reached in this paper, in the cases under consideration, is that the right solution would have been not to relax the austerity of European law requirements as regards State liability action in order to assimilate them into the internal law stipulations for the same action but rather, by means of a genuine dialogue between the courts on the substance of the issues involved, to adapt the national law requirements of the liability action to the more demanding conditions of European law.