Member State Liability Flashcards
What is the principle of member state liability?
Rather than seek a remedy under direct effect, the individual can bring proceedings for damages against the state due to its failure to transpose the directive properly.
How did the principle of state liability originate?
Francovich
- Doctrine of state liability was first created
- Under Simmenthal principle of effectiveness national courts are under an obligation to ensure that the rules of Community Law are given full effect and that rights are given full protection.
- Inherent in this is that the State must be liable for loss and damage caused to individuals as a result of breaches of Community Law for which the state can be held responsible.
How is Member State Liability established?
Francovich
- 3 conditions to be met
1) Directive must have been intended to confer rights upon the individual and it must be possible to identified these rights from the Directive/ sufficient clarity
2) Breach must be sufficiently serious
3) There must be a direct causal link between the breach of the State’s obligations and the loss/ damage incurred by the individual.
When is a breach sufficiently serious?
Brasserie
- The decisive test is whether the MS or Community Institution concerned ‘manifestly and gravely disregarded’ the limits of its discretion.
- Factors taken into account when considering this include;
- clarity and precision of the rule;
- measure of discretion left to authorities;
- whether it was intentional or involuntary;
- whether an error of law excusable or inexcusable;
- did the EU contribute to the ommission and;
- was there an adoption or retention of national measures contrary to EU law.
Dillenkofer
- If there has been a ‘pure omission’ on the part of the state such as not taking any steps to transpose a directive a sufficiently serious breach is easily established .
- Otherwise negligence is implicit in the required ‘manifest and grave disregard’ test.
Does the principle extent to national courts?
Kobler
- Extended the principle to national courts of final appeal.
- However it should only be found in the exceptional case where the court has manifestly infringed the applicable law, for example where in decision was made in breach of ECJ case law.
