9. State Liability and Key Aspects of EU Non-Contractual Liability Flashcards
What is the principle of procedural autonomy in EU law?
The principle of procedural autonomy means that national courts are primarily responsible for applying EU law and do so using their own national procedural rules regarding aspects like statute of limitations, brief content, hearing, and appeal. This is based on sincere cooperation under Article 4(3) TEU.
What are the main limits to the principle of procedural autonomy?
The principle of procedural autonomy is limited by the principles of effectiveness, equivalence, and the right to an effective remedy (Arts. 19(1) TEU and 47 CFREU).
Explain the principle of equivalence in the context of procedural autonomy.
The principle of equivalence requires that national procedural rules for actions protecting EU law-based rights must not be less favourable than those relating to similar domestic actions (33/76 Rewe). While the conditions do not need to be identical, they should be similar, considering the purpose, cause of action, and essential characteristics of the actions (C-78/98 Preston, C-118/08 Transportes Urbanos).
Explain the principle of effectiveness in the context of procedural autonomy.
The principle of effectiveness requires that the conditions applicable to EU law-based actions cannot make it impossible in practice to exercise EU law-based rights before national courts (33/76 Rewe, C-278/20 Commission v Spain). This includes the obligation of national courts to order interim measures to guarantee the full effectiveness of EU law (143/88 Zuckerfabrik, C-465/93 Atlanta FHG). It also relates to aspects like limitation periods and burden of proof, ensuring they do not hinder the exercise of EU rights. In certain cases, national courts may even have an obligation of ex officio application of EU law (C-431/93 Van Schijndel).
What is the right to an effective remedy in EU law, and how does it relate to effectiveness and equivalence?
The right to an effective remedy is a fundamental right of every person to a fair and public hearing within a reasonable time by an independent and impartial tribunal (Arts. 19(1) TEU and 47 CFREU). While effectiveness and equivalence were developed first, the right to an effective remedy became autonomous, and the former are now seen as a concretion of the latter (C-268/06 Impact). The CJEU has shown a tendency in recent cases to apply Arts. 19(1) TEU and 47 CFREU instead of equivalence and especially effectiveness.
What is the fundamental principle of Member State liability for breaches of EU law?
The principle of Member State liability holds that a Member State must be liable for loss and damage caused to individuals as a result of breaches of EU law for which the Member State can be held responsible (C-6 and 9/90 Francovich). This principle is inherent in the system of the Treaty and based on the full effectiveness of EU law and sincere cooperation (Art. 4(3) TEU).
What types of acts can give rise to Member State liability?
Member State liability encompasses breaches resulting from legislative, executive, and judicial acts, as well as actions at all territorial levels, by bodies, dependent agencies, and even civil servants in the exercise of their duties (C-470/03 AGM-COS.MET).
What are the conditions for an individual to seek redress for damages caused by a breach of EU law by a Member State?
The conditions are: The EU provision infringed must be intended to confer rights on individuals (C-46 and 48/93 Brasserie du Pêcheur and Factortame). There must be a sufficiently serious breach of EU law, indicating a manifest and grave disregard of the limits on the Member State’s discretion. Several criteria are considered, such as the clarity and precision of the provision, the discretion left to the MS, whether the breach was intentional or involuntary, and the excusability of any error of law. A breach is presumed if the CJEU has already established it and the MS persisted, or if a last resort national court issued a decision in breach of EU law without a preliminary referral (C-224/01 Köbler). There must be a causal link between the breach by the Member State and the damage suffered by the injured parties.
Is pecuniary redress the primary way to protect EU law-based rights?
No, pecuniary redress is considered a subsidiary protection of EU law-based rights, used where consistent interpretation and direct effect are not possible.
What is the basis for the EU’s non-contractual liability?
The EU’s non-contractual liability is based on Articles 340(2) TFEU and 41(3) CFREU, which state that the EU must make good any damage caused by its institutions or by its servants in the performance of their duties. Actions for non-contractual liability are brought before the CJEU, specifically the General Court (Art. 268 and 256(1) TFEU).
What are the requirements for establishing EU non-contractual liability?
The requirements are equivalent to those of Member State liability (C-352/18 Bergaderm): Unlawful EU conduct entailing a sufficiently serious breach of an EU law provision intended to confer rights (C-120/06 P FIAMM). Actual and economically valuable damage (185/80 Garganese). A causal link between the damage and the unlawful conduct.
What is the limitation period for bringing an action for EU non-contractual liability?
The limitation period is five years from the occurrence of the event giving rise to the damage, provided the claimant had reasonable knowledge of the elements to be proven after the injurious effects were produced (Art. 46 Statute of the CJEU). This period can be interrupted by an application before the CJEU or a preliminary request to the institution (11/72 Giordano).
Who can bring an action for EU non-contractual liability?
Any legal or natural person who has suffered damage to their own assets as a result of the conduct of EU institutions, bodies, offices, or agents can bring an action (238/78 Ireks-Arkady).
Is procedural law generally harmonised at the EU level?
No, procedural law is not generally harmonised at the EU level. However, there are a number of EU provisions harmonising specific aspects or fields, such as jurisdiction and recognition of judgments, applicable law in certain areas, consumer contracts, environmental protection, discrimination, and damages from breaches of competition law.
What is the role of national courts in applying EU law?
National courts are the main responsible bodies for applying EU law. This division of labour is based on sincere cooperation under Article 4(3) TEU.
How do national courts cooperate with the Court of Justice of the European Union (CJEU)?
National courts cooperate with the CJEU primarily through preliminary referrals, which allow national courts to refer questions of validity or interpretation of EU law to the CJEU. National courts may also be obligated to refer to the CJEU to ascertain the validity of EU acts when considering suspending national acts based on EU law.
