Member State Liability

Question 1

Rewe-Zentralfinanz

Answer 1

ECJ set out a number of principles for MS liability:

i) Procedural autonomy
ii) Principle of equivalence/non-discrimination
iii) Principle of practical probability

Question 2

Factortame

Answer 2

• Factortame argued that the provisions of the UK Merchant Shipping Act were contrary to EC law as they prevented Spanish-owned boats from fishing
• In the meantime, Factortame sought an injunction to prevent the provisions operating
• Found out they were statute barred for technical reasons (ran out of time to take action)
• Held that Community law has supremacy, therefore national law was inapplicable
• If the national law is the sole obstacle which prevents a national court granting interim relief, the national law must be set aside for Community law
• MS must set aside national law for Union law

Question 3

Francovich

Answer 3

• Created principle of MS liability
• Directive provided that MS had to provide insurance for employees of companies that were insolvent to ensure payment
• Francovich sued bank he worked at (horizontal)
• He was trying to enforce directive, but directives are not subject to horizontal direct effect
• His rights were still impeded so brought legal action against the state
• Liability of MS Italy for not implementing directive
• ‘Full effectiveness of Community rules would be impaired and the protection of rights…weakened if individuals were unable to obtain compensation’

Question 4

Brasserie

Answer 4

• For ‘Sufficiently serious’ test, courts will take into consideration:
• The clarity and precision of the rule breached
• The measure of discretion left by that rule to the national or Community authorities
• Whether the infringement and damage caused were intentional or involuntary
• Whether any error of law was excusable or inexcusable
• The fact that the position taken by a Community institution may have contributed towards the omission

The adoption or retention of national measures or practices contrary to Community law

Question 5

British Telecom case

Answer 5

• Mis-interpretation of Directive
• Not sufficiently serious

Question 6

Kobler v Austria

Answer 6

• Concerned final court decision
• Kobler was a professor in an Austrian university
• Part of his salary was based on length of service but periods spent in universities in other MS was not included
• Austrian courts held this to be in line with Community law
• They initially made a preliminary reference but withdrew
• The Austrian court wrongly believed that the ECJ had already ruled on the question in another case
• Kobler brought action for loss suffered as a result of the court’s decision
• ECJ held that he could bring an action, however not in this instance as the breach was not sufficiently serious
• Wrong reading of earlier ECJ ruling which made the court come to their decision