direct effect and state liability

Question 1

what is state liability?

Answer 1

a remedy you can rely upon when you have exhausted direct and indirect effect

the state is liable to pay compensation to an individual who suffered damage as a result of the state breaching its obligations under EU law

Question 2

how was the principle of state liability developed?

Answer 2

via CJEU case law

Question 3

which cases set out the requirements for state liability?

Answer 3

Francovich and Factortame

Question 4

what are the requirements set out in Francovich/ Brasserie and Factortame?

Answer 4

1. the rule infringed must confer rights on individuals
2. there must be a direct causal link between the breach of EU law and the loss suffered by the individual
3. the breach must be sufficiently serious

Question 5

what types of conduct may give rise to state liability?

Answer 5

Brasserie/Factortame = any case in which a member state breaches EU law

Question 6

which state entities can be held liable under state liability?

Answer 6

Brasserie/Factortame = whatever be the organ of the state

Question 7

what constitutes a sufficiently serious breach?

Answer 7

a manifest and grave disregard of the limits of discretions
list of factors set out in Brasserie:
- the clarity and precision of the EU rule breached
- the measure of discretion in the adoption of legislative acts by national authorities
- whether the infringements was intentional or accidental
- whether any error of law was excusable or not
- whether any action or advice on the part of the commission had contributed to the breach
- whether the MS had adopted or retained national measures contrary to EU law

Question 8

what are some examples of a sufficiently serious breach?

Answer 8

• national law that is clearly contrary to established and settled case-law of CJEU
• breach of a decision of the EU institutions
• failure to implement a directive
• absence of any discretion

Question 9

when is a breach not sufficiently serious?

Answer 9

if:
- there was a bona fide mistake
- imprecision or lack of guidance from EU institutions - Denkavit

Question 10

what are some advantages of state liability?

Answer 10

• ensures full effectiveness of EU law
• creates an incentive for member states to actually comply with EU law in order to avoid being held liable and have to pay compensation to individuals

Question 11

does state liability still apply post brexit?

Answer 11

no
so individuals cannot claim damages post-exit on the ground that the UK failed to apply EU law as it was obliged to do so