EU - Member State Liability - LGS 7

Question 0

Comet BV

Answer 0

Cj confirmed it is within member state’s discretion to allocate actions to appropriate national courts.

Established Principle of non discrimination: that enforcement of eu law should be consistent with national law enforcement.

Question 1

Art. 267 TFEU

Answer 1

Preliminary reference procedure, serves to ensu uniform interpretation of eu law across member states.

Question 2

Amministrazione dele finance

Answer 2

Must not be excessively difficult to obtain a remedy.

Question 3

Rewe handelsfesellschaft

Answer 3

Same remedies mut be available in national courts for eu law where possible.

Question 4

Von Colson

Answer 4

Remedies available must be proportionate and adequate.

Question 5

Marshall v Southampton

Answer 5

If remedies under national law aren’t effective, national courts should provide a new one or improve the existing one.

Question 6

Response to damages claims in respect of breach of eu legislation

Answer 6

Attempt in temptation of eu law inline with eu law, or pursue through incidental, indirect effect or remedy in damages.

Question 7

Francovich

Answer 7

Member state liability first recognised when Italian government failed to implement directive within set timeframe. Criteria of the directive only referred to individual and they were able to claim

Question 8

Francovich Criteria

Answer 8

Directive must confer rights on individual,

The contents of the rights must be clear and identifiable

Must be a causal connection between the ms breach and loss suffered by the individual.

Question 9

Brasserie du pecher / factortame 3 criteria

Answer 9

confirmed francovich and added criteria ( Francovich damages as applied in Factortame 3)

Whether eu law intended to confer rights on individuals

Can be any law any breach sufficient.

Breach must be sufficiently serious

Must be direct causal link between breach of state obligations and damage suffered by c.

Question 10

Factors to consider when assessing a breach

Answer 10

How clear precise and precise is the rule

What measure of discretion does the rule allow?

Was the infringement wilful or inadvertent? - accidental not usually enough, speed of rectification relevant.

How excusable was the error as to the effect of eu law?

Was its contrary to settled case law?

Question 11

R v HM treasury ex art BT

Answer 11

Extremely difficult to obtain damages from member state due to the strict criteria set out. Here misimplimentation did not lead to liability as directive was considered ambiguous.

Question 12

Dillenkofer v Germany

Answer 12

Non transposition of directive in francovich was found to be a sufficiently serious breach.

Question 13

Köbler v republic of Austria

Answer 13

State liability can arise as a result of breaches of eu law by organs of state.

Question 14

Traghetti mediteranneo spa v Italy

Answer 14

Limitation of liability by state would amount to breach if exclusion lead to manifest infringement – showed not necessary to have intention to infringe eu law for a breach to occur.

Question 15

Difference between non contractual liability of a member state for breach of eu law and liability to pay lump sum or penalty awarded by CJ under art 260 TFEU pursuant to action by the commission or a member state under article 258 or 259 TFEU

Answer 15

When individual claims, they get damages, when state or eu does the money goes to EU fund.

Question 16

Courage v Crehan

Answer 16

Anti competitive activities by individuals under 101 or 102 can give liability.

Question 17

Humblot (Humblow)

Answer 17

Restitution: Member state in breach of eu law must repay sums wrongfully levied such as chees

Question 18

Factortame

Answer 18

Interim measures / injunctions can be served by member state, suspending the offending legislation. Easier to give damages though.

Question 19

Action against member state

Answer 19

Individuals in national court, CJ may become involved if a 267 reference is made.

Commission in enforcement actions under 258 TFEU

Other member states and or commission under 259 enforcement action

Question 20

Action against eu institutions

Answer 20

Member states and individuals can challenge legally binding acts under art 263 and CJ may declare such acts void as a result.

Member states and individuals can challenge omissions to act art 265.

Individuals may make Indirect challenge of validity of secondary legislation under 267 TFEU reference procedure but only if national court determines such reference is necessary,

Individuals may claim non contractual damages against institutions under art 340.

Question 21

Action against institutions

Answer 21

Can be made by individuals under art 267 in national courts or

By commission for breaches of competition law arts 101 or 102.

Question 22

Answer format

Answer 22

1. Directly applicable in English law?
2. Capable of direct effect
3. Rely on wording of eu law, or
4. If not possible (directive in a horizontal situation) try incidental effect.
5. If not possible try indirect effect
   6 does individual have a remedy in damages?