EU Law - State Liability and National Remedies x2 Flashcards
What case required damages be available in principle for breach of EU law?
Courage v Crehan
What was the basic principle disabled in Factotame?
No interim relief against the Crown
When is it more likely the EU will lead it to the national remedies?
If court emphasises national autonomy and concerns ancillary procedural rights
What was considered unacceptable in Factortame?
An absolute prohibition on interim relief
What section of what Treaty covers duty of Members to offer remedies and EJP?
Article 19 TFEU
What case affirmed and extended Marshall?
Evans
What case said specific remedy required at national if flows from substantive provisions?
San Giorgio
Duty of Members to make good any damage caused
Article 340 TFEU
Just remedy under EU Charter
Article 47
Dekker-Stichting general
Pregnant, ETD
What created uncertainty in national remedies?
Creative national courts displaying national rules in some cases and not in others
What case added effectiveness and adequacy to twin principles?
Von Colson
What case drew a distinction between dismissal on grounds of sex and discriminatory denial of social security?
Ex p Eunice Sutton
Case allowing Domestic law still primary role in determining conditions for grant of specific remedy required by EU law
San Giorgio
What two cases show the CJEU being lenient on sufficiently serious SL requirement?
Ex p BT and Kobler
Who said it was better to refer to national procedural autonomy as responsibility?
Dougan
Metalgesellschaft
Rejected UK argument of failure to mitigate losses to reduce damages
Why was there no SL in Ex p BT?
The measure was unclear so breach was understandable
What three things did Francovich require for state liability?
Intended to confer, ascertainable from measure and causal
What two rules were disapplied in Marshall?
Jurisdictional and substantive
Dekker-Stichting judgment
Didn’t allow Member to subject redress claim to ‘fault’ nor allow defence of justification
Danfoss
Virtually impossible
What case confirmed that Von Colson goes wider than just sex discrimination?
Johnston v CC
Academic on the Schoppenstedt test
Beutler
Who highlighted how Unibet was not erga omnes
Arnull
Pizzarotti
No automatic review of res judicata judgment if EU provision adopted AFTER delivery
Beutler on SL
Not in regal isolation, court can be held liable if makes it insurmountable and never MI yet doesn’t mean it is insurmountable
Who argued that SL is a residual remedy?
Prechal and Beutler
Von Colson general
Equal Treatment Directive
Ex p Eunice Sutton general
Arrears of benefit but no interest
Case on rules of evidence and effectiveness
Boiron v URSSAF
What did the court say was required for dismissal on grounds of sex in Ex p Eunice Sutton?
Reparation for loss and damage
No automatic review of res judicata judgment if EU provision adopted AFTER delivery
Pizzarotti
What case said that there is very little difference between Factortame and Fvrancovich?
Dillenkoffer
What are the two requirements for national remedies for breach of EU law?
Equivalence and practical possibility
If there is no EU remedy required, what is the default position?
NPA/NPR through Article 19(1) TEU
Ex p Eunice Sutton judgment
Distinction between dismissal on grounds of sex and discriminatory denial of social security
Who argued SL is residual?
Beutler
Two examples of application of Rechberger
Com v France; Schmidburger v Austria
What did Factortame require for SL test
grave and manifest infringement
What case tried to limit lucchini effect?
Pizzarotti
What type of case was Marshall (according to Ex p Eunice Sutton)?
dismissal on grounds of sex
What is it suggested led to the outcome in Marshall?
Substantive importance of ETD in EU law
What case rejected that the breach needed to be intentional for SL?
Traghetti
What case did they rely on in Dekker-Stichting?
Von Colson
What did the court allow in Factortame?
National court could specify the conditions of th interim relief
Lucchini
Res judicata cannot prevent recovery of aid
Three cases on equivalence generally
Edis v Ministero; Manfredi and Van Schijndel
Case reiterating new legal order reasoning from Van Gend to justify damages in principle
Courage v Crehan
Hakenberg on SL
Test is ‘as yet unclear’
When is it more likely the EU will demand a particular remedy?
if the court emphasise a substantive right and if it concerns a remedial right
Unibet
Gambling
Marshall II judgment
Both substantive and jurisdictional rules for discrimination in breach of EU law removed
Three cases showing uncertainty as a result of creativity of national courts in national remedies
Factortame, Marshall and Evans
Case stating that non-tranposition = sufficiently serious
Dillenkoffer
What was the first case on state liability?
Francovich
What case highlights that it is for the Member to enforce EU law and provide remedies etc.?
Rewe v Land
What case did Metalgesellschaft draw comparison with?
Marshall
What case affirmed Steenhorst?
Johnson II
Despite Steenhorst, what was there no retreat from?
Effectiveness and adequacy
What case showed SL applies to executive decisions?
Ex p Hedley Lomas
Societe Comateb
Case suggesting that SL is a residual remedy
Rejected UK argument of failure to mitigate losses to reduce damages
Metalgesellschaft
Example of a remedial right
Damages/compensation (Marshall) or access to court (Heylens)
3 remedies available in Unibet
Apply then JR, criminal proceedings or damages for no advertising
What was influential in Steenhorst?
State concerns of financial balancing
Metalgesellschaft essential remedy
Interest
What four cases show an obligation to provide a specific remedy?
Metallgesellschaft, Courage v Crehan, Factortame and San Giorgio
Who believed that the CJEU preserved the Rechtsfrieden between EU and Members in SL?
Wegener
Emmott v Minister for SW general
Retrospective disability payment rejected
Boiron v URSSAF
If national evidentiary requirements make EU law difficult to be effective, use ‘all procedures available’ to ensure EJP
What case stated no need for adequacy of payment for arrears?
Eunice
What was the claim for in Marshall?
Compensation for discrimination in breach of EU law
Two cases on ETD
Von Colson and Dekker-Stichting
What case suggested effectiveness even trumps a basic principle of a Member State
Factortame
Conditions for SL in Factortame
Intended to confer, sufficiently serious and causal
Johnson II
Even without state concerns of financial balancing, one year bar was compatible with EU law
In what case did AG Jacobs suggest if effectiveness is always emphasised then could discriminate in favour of EU law
Van Schijndel
Manfredi
If similar domestic actions permit specific damages, allow for EU
What case sees CJEU stretching national requirements to ensure effectiveness?
Boiron v URSSAF
What is the current approach to national remedies and what case?
Balance EJP with NPA, Peterbroeck v Belgian State
What case did the court draw on in Factortame in regard to national remedies?
Simmenthal
What case stated that Allowing a claim only for ‘reliance loss’ is ineffective under ETD?
Von Colson
Article 47 EU Charter
Just remedy
Why is the decision in Dekker-Stichting DOUBTED?
Allowing consideration of fault wouldn’t necessarily have made EU law ineffective or impossible
Heylens v UNECTEF
Right to effective judicial review
What case stated that state liability arises ‘whichever’ is the action of the Member State?
Brasserie
Courage v Crehan
Damages need to be available in principle for breach of EU law
What case said that if EU law requires compensation, the Member cannot use factors such as effluxion of time to affect the value
Evans
Who believed Kobler showed excessive deference to Members?
Cabral and Chaves
National courts can refuse reliance on EU if claimant abusing rights
Dionysios Diamantis
What case didn’t allow Member to subject redress claim to fault nor defence of justification because of ‘effectiveness’?
Dekker-Stichting
Dougan on SL
Reliance on SL reduces the effectiveness of national remedies
What case said state liability is inherent?
Francovich
What is the commensurability requirement in Dekker?
The measure must be reasonable - it need not make EU law impossible before it is considered ineffective
What case suggested even a mere infringement may = sufficiently serious if little discretion?
Ex p Hedley Lomas
Dougan on NPR
Better NPA
Rewe v Hauptzollamt
No new remedies
Example of substantive EU right
ETD - Marshall
Article 4(3) TEU
Members need to take ‘all effective measures to sanction conduct’ affecting EU financial interests
Ceiling on damages is not always impermissible for ‘adequate compensation’
Draehmpaehl v Urania
Who thought removing subjective fault from SL in Traghetti removed limiting factor of SL
Ludner
Dillenkoffer on intended to confer
Look at provisions of the measure in question
Krieger on SL requirements
Rare that the hurdle will ever be overcome
Re-open final decision if misunderstanding of EU
Kuhne and Heitz
What case introduced a commensurability requirement for national remedies
Marshall
What case required that in order to sue the Member over the person who actually caused harm, it must be virtually impossible to sue the latter?
Danfoss
Johnston v CC
confirmed that Von Colson goes wider than just sex discrimination
Van Shijndel
Per AG Jacobs, if effectiveness is always emphasised then could discriminate in favour of EU law
what case showed that there needs to be NO national remedy for EU to demand one?
Unibet
Fub v Stedt Halle
Disregard case law
Ex p BT general
Unclear
Who believed that the requirements for the ‘sufficiently serious’ leg of SL can be ascertained or helped by the Schoppenstedt test?
Beutler
Case requiring grave and manifest infringement for sufficiently serious SL
Factortame
Three cases trying to ensure legal certainty and effectiveness
Kuhne and Heitz; Lucchini; Pizzarotti
What case built on Fvrancovich?
Factortame
Edis v Ministero
Equivalence means no distinction between national and EU law, but not most favourable extended
Emmott v Minister for SW facts
Didn’t allow a claim for payment under a Directive because time limit had expired by the time the Directive was properly implemented
If national evidentiary requirements make EU law difficult to be effective, use ‘all procedures available’ to ensure EJP
Boiron v URSSAF
why did Ludner criticise Traghetti?
Removing subjective fault removes the limiting criteria in sl
What case tries to explain Emmott v Minister for SW ?
Texaco A/S
What type of case was Ex p Eunice?
discriminatory denial of social security
What case showed SL being imposed because sufficiently serious in disregarding case law?
Fub v Stedt Halle
Texaco A/S
Confined Emmott v Minister for SW , largely due to misleading conduct in that case
Rechberger
State cannot use misconduct of 3rd as a defence to action for damages for breach of EU law
What two sources did the court draw on in Heylens v UNECTEF?
Articles 6 and 13 ECHR
In what case did the court reiterate that MI is not an insurmountable hurdle?
Traghetti v Italy
What case was on a Directive almost identical to that in Marshall?
Ex p Eunice Sutton
Case suggesting that SL is a residual remedy
Societe Comateb
What did the court say was/was not required for discriminatory denial of social security in Ex p Eunice Sutton?
Not for loss or damage, and interest is not essential
Example of ancillary procedural rights
Time limits (e.g. Steenhorst)
Article on principle of sincere cooperation
Article 4(3) TEU
Ferwerda
Grant of a remedy based on national law, subject to E & PP
What should the court have in mind for new approach to national remedies under Peterbroeck?
aim and function of national rule and importance/objective of EU right
What was the broader principle from Emmett?
No reliance on domestic law to limit a claim until Directive implemented
Ludner
Subjective fault
What two cases show a strong initial requirement of effectiveness of national remedies?
Dekker-Stichting and Emmott v Minister for SW
Evans
If compensation/restitution required, no exclusion of factors affecting the compensation value
steenhorst-neerings general
Retrospective disability benefit for unimplemented period
Case stating grant of a remedy for breach of EU based on national law, subject to twin principles?
Ferwerda
Dionysios Diamantis
National courts can refuse reliance on EU if claimant abusing rights
What case withdrew from Marshall?
Johnson II
Three cases on effect of P’s conduct and equivalence
Dionysios Diamanis, Rechberger and Metalgesellschaft
What case abandoned the broader principle from Emmett?
NSteenhorst
Arnull
Unibet not erga omnes
What two principles did Von Colson add to the original twin principles
Adequacy and effectieness
What was the national rule in Steenhorst-Neerings?
Dutch law did not allow payment retrospectively of more than a year
Equivalence means no distinction between national and EU law, but not most favourable extended
Edis v Ministero
What case stated it is not for a Member to refuse to pay interest on a claim?
marshall
If similar domestic actions permit specific damages, allow for EU
Manfredi
what did San Giorgio allow?
Domestic law still primary role in determining conditions for grant of specific remedy required by EU law
Case suggesting SL can run separately from national claims
Stockholm Lindopark
What are the twin principles?
Equvalence and practical possibiity
Draehmpaehl v Urania judgment
Ceiling on damages is not always impermissible for ‘adequate compensation’
No new remedies
Rewe v Hauptzollamt
What two remedies in Unibet were 100% compliant with EU law?
Damages and JR
Res judicata cannot prevent recovery of aid
Lucchini
How did the court distinguish Emmett in Steenhorst?
One-year period not a time limit, and not an absolute bar
Why did Dillenkoffer not think any difference between Factortame and Fvrancovich?
Sufficiently serious assumed in Factortame
Case on intended to confer
Dilenkoffer
Cabral and Chaves on SL
Excessive deference to Members in Kobler etc.
What case stated that requirements by EU on national remedies are fact-specific?
Eunice
Kobler general
Austrian failure to refer to CJEU
How many remedies were there available in Unibet at national level?
3
What case seemed to suggest effectiveness trumps NPR & UK law
Factortame
Case showing state response to breach of EU law by individuals still needs to be proportionate and not block fundamental freedoms
Sagulo
What test is similar to sufficiently serious test?
Schoppenstedt
Members need to take ‘all effective measures to sanction conduct’ affecting EU financial interests
Article 4(3) TEU
Emmott v Minister for SW judgment
Suspend time limits on bringing a claim pending proper implementation of a Directive
Stockholm Lindopark
Case suggesting SL can run separately from national claims
Draehmpaehl v Urania general
Ceiling
Right to effective judicial review
Heylens v UNECTEF
Wegener
Rechtsfrieden
Sagulo
state response to breach of EU law by individuals still needs to be proportionate and not block fundamental freedoms
Reliance on SL reduces the effectiveness of national remedies
Dougan on SL
What part of the Treaty did the court explicitly rely on in Factortame
Article 340 TFEU
What case showed Factortame SL applies to courts of last instance that fail to refer?
Kobler
Kuhne and Heitz
Re-open final decision if misunderstanding of EU
Von Colson judgment
Allowing a claim only for ‘reliance loss’ is ineffective under ETD
Article 340 TFEU
Duty of Members to make good any damage caused
What case refused to elaborate on ‘sufficiently serious’?
Brasserie
What was the requirement in Kobler for SL?
Manifest infringement
Pregnant, ETD
Dekker-Stichting
What case was conjoined with Factortame?
Brasserie v Germany
Article 19 TFEU
duty of Members to offer remedies and EJP
Four cases showing a more cautious approach to national remedies
Steenhorst-Neerings, Johnson II, Ex p Eunice Sutton and Draehmpaehl v Urania
