MS LIABILITY

Question 1

what does ms liability belong to?

Answer 1

Ms liability for breach of eu law- topic 8.2 so belongs to topic no.2 – NATIONAL PROCEDURAL AUTONOMY

Question 2

Recap: national procedural autonomy:

Answer 2

Default: national procedures and remedies apply

Subject to EU law safeguards of equivalence and effectiveness

Apply this test for the effectiveness safeguard in problem questions:

National procedural rules governing actions for safeguarding an individual’s EU right “must not render practically impossible or excessively difficult the exercise of EU rights (principle of effectiveness)” Case C-432/05 Unibet [43]

Question 3

so what did we do last week?

Answer 3

Short recap of last week:

• Last week handled national p a – default was even though want to rely on mp right, going to enforce this right in national courts e.g uk courts – national procedures and rememedy- what type of damages do u get governed by uk law
• Howver this is governed by eu law safguards etc – looked alst week –wasn’t very clear which test wanted you to apply in problem q scenario – fore ffectives –
• THIS IS THE TEST BELOW – nationational- read as written / exces diff- test want to apply if problem q on NATIONAL PROCEDURAL AUTONOMY – reason why ex diff bold- because if national rule makes ir ptracticla impsible national law – automatically this is also exces diff for u . This element is key when apply this test.

Question 4

Recap: national procedural autonomy 2? question?

Answer 4

A was denied a permit to operate a telephone company by a government official even though he has a right to such a permit under EU law. A argues that he incurred initial losses of £ 250,000 while setting up the company. For actions against a government decision, UK law allows full damages, but for EU claims against a government decision, the UK limits the maximum available damages to £ 10,000. The UK argues that under French law, all damages claims against government officials are capped at £ 10,000.

Is EU law infringed?

Question 5

Recap: national procedural autonomy - answer to q?

Answer 5

Now –
Read as written – HE HAS THE RIGHT- by law lim to 10k – even though eu right infrigened by uk gov
If tha were fully national scenario he would get full damages – but eu so lim to 10k max – that’s the scenario EU CLAIMS THEY ARE KEPT AT 10K but if national would get full

Menti- uk law full damages, BUT for Eu claims capped at 10k – which principle was infringed? – equivalence infringed- mainly about non discrim of eu law- eu law is discrim against bcause if we didn’t have eu law he would get whole- now we have e law only get 10 – that is why principle fo equiv infring-#
Effectivenes- 1 poss way to argue is – if you think about right to permit udner eu law , the fact that eh would only get 10 k back instead of 250 k , doesn’t make it exx diff for him to exercise his right- but u have opton to say that fi think abot what busienssees –d oa dn what decisions they make. If they have intital starting costs- what would he do – wouldn’t set up phonce company- could argue is exces diff and thts why eu law is infringed- had to defer that poss – remebr court of justice in favour of poorer individ whos eu right is infringed-
It is poss to argue effect not ifnrigned bc- thr right is to a permit, and when he excercises thatr gith fact that he may not get damages money back if something goes wrong is too far down the chain of peros= wiuld be pos arg- toofar fetched thought toa rgue that that makes eccersiign right ex diff – heart rells co.oj 1st option and also say principle of effectiveness is infringed- have BOTH OPTIONS in an exam- doesn’t matter because we know for sure PRINCIPLE OF EQUIV IS IFNRINGED – so EU LAW IS INFRINGED.

Question 6

what to do for ms liability?

Answer 6

• Understand the development of the doctrine of Member State liability
• Understand and apply the test for Member State liability
• Critically assess the scope of application of the doctrine of Member State liability

Question 7

so what are we doing now?

Answer 7

DO NOW:

• Todays topics- MS LIABILITY FOR BREACH OF EU LAW
• 1st look at- how this doctrine developed – then – apply it TEST – possible q in EXAM
• Scope of doc – TARGETS ESSAY Q

Question 8

Part I: Introduction: What is it?

Answer 8

(1) The wider picture – where does “Member state liability for breach of EU law” fit in?

-Key principles of „private enforcement“ of EU law
= direct effect, indirect effect, national procedural autonomy and ms liability

so could be either or

Question 9

Part I: Introduction: What is it? - definition?

Answer 9

(2) MS liablity for breach of EU law - Definition
- action by an individual against a MS when the MS has failed to comply with EU law and that has resulted in damage or loss to the individual

This action is brought in national courts against the MS (e.g. against the UK)

DONT DO DEFINITION IN EXAM

Question 10

Part I: Introduction: What is it?-what about ms liabiltiy?

Answer 10

This action is brought in national courts against the MS (e.g. against the UK)

Question 11

Part I: Introduction: What is it? -what about ms for essay q?

Answer 11

(3) MS liablity for breach of EU law is part of the topic „national procedural autonomy“
- For essay questions on national procedural autonomy: think about MS liability as well

Question 12

Part I: Introduction: What is it?- orgin of ms liability?

Answer 12

Origin of the doctrine of MS liability for breach of EU law: Case C-6/90, Francovich
No textual base in the Treaty
Decided in „period of judicial intervention“

Question 13

Part II: An example - e.g? q?

Answer 13

EU law to the rescue: The story of Aston law student A

A works as an Uber driver. Under Uber’s terms, she is self-employed and, thus, not entitled to holiday pay and sick pay. Current English law as interpreted in English courts allows this practice. A studies EU law at Aston. She is smart: She owns an EU statute book and she also looks into it once in a while. She is convinced that she is a worker under the EU directives regulating workers’ rights. These directives grant workers the right to holiday pay and sick pay. A brings an action against Uber in the English courts. How does EU law affect A’s claim?

Knowing just English law won’t help A! Knowing EU law can be a real winner!

Question 14

Part II: An example - answer to q?

Answer 14

Atm still exploring what MS actually means and is.
e.G – uber driver holiday pay because eu directive apply to her and give her pay –if right she can rely on directives in national corts tey will prevail voer English alw, but turns out that a cannot directly rely on directives in English courts.
Why? Why can she not rely on directives?- she believes she has eu right of holiday pay.
Directives do not have indirect effect?- ALL EU LAW HAS INDIRECT EFFECT- DOCTRINE OF HARMONIOUS INTERP- if u have national alw have to interpet national law in harm with eu law no matter what
Directives do not have horizontal direct effect ? – don’t create obligstions as such for indivisal in our case individ uber, youc annto rely on directive in itself against uber. That’s what corut said. Don’t have h direct effect. Also the reason why dotn always do recaps bc if u look at learnig theor, it will tell u that if u don’t revise topic within 48 hrs u lose 80% of what u know. - no horizontal direct effect and can see on consequence of no – comes from direct effect lecture- directive Sdo not have horizontal direct effect that means directive remain ineffective0 now court developed striagetgies to implement this. And we looked at this excessively end of last year. If this fails and doesn’t work, theres plan b or c, option of ms liability for breach of e law – last way out. -0 ms liability breach of eu law is different from firect effect. If u rely direct effect national court seem toe nforce u right
Directives do not have vertical direct effect?
-

Question 15

Part II: An example - whatrs another part of e.g?

Answer 15

EU law to the rescue: The story of Aston last student A

If A is right, the EU directives may prevail over English law [= supremacy of EU law]

EU law only helps A if A can rely on the directives in English courts [= direct effect of EU law]

It turns out A cannot directly rely on the directives in English courts. Why?

Question 16

This slide comes from the direct effect lecture - part of example consequence?

Answer 16

Consequence of No horizontal direct effect of directives

• Directive remains ineffective without proper implementation in MS. Incompatible national law applies.
• BUT
  1. CJEU has developed “strategies” to circumvent the lack of horizontal direct effect of directives [Part VI]

2. MS liability for breach of EU law
   [TP2, Topic 8]

Question 17

Part II: An example - how are ms and direct effect different?

Answer 17

Member State liability is different from direct effect!

1. Direct effect: you seek to enforce your right (e.g. right to not be discriminated against, right to holiday pay)
2. State liability: you seek damages from the state, instead of your right, because your right is breached

Question 18

Part II: An example - difference in other words?

Answer 18

State liability – damahes state because right is breach- because cannote nforce righ uber, thas damages
In theory at tleast can be quite powerful is it does not – it also works if eu la wis directly effective.

– 2nd point – that’s wnhy it is quite interesting for applicants hwow ant tor ely ona directive. It also applies if eu la wis directly effective. Controversial. = FURTHER READING.

Question 19

Part II: answer to example? continuing?

Answer 19

EU law to the rescue: The story of Aston last student A

[contd.]
Filled with anger, A has one final thought. If English law does not give her the right to holiday pay and sick pay even though EU law does, that means that the UK government did not correctly implement the EU directives regulating workers’ rights into English law.

If A is right, the UK government has breached its obligation to correctly implement directives into national law (cf. art. 288 TFEU) = a Member State (here the UK) breached EU law

A decides to sue the UK and bring an action in English courts.

Question 20

Part II: answer to e.g continuing?

Answer 20

Means – get to what ms liability is – she cannot rely on the right against uber- shes filled with anger but she had 1 final thought – read first as written – her euk did not correctly implement directives,

5. Read as written – that sit eh crucial breach of eu law by member state – art 288 – to IMPLEMENT DIRECTIVES – ms
   So clear we had A BREACH HERE- so a decides to sue uk and bring action- se ants to rely bms liability for breacj of eu law.

DEVELOPMENT OF WHY THAT CAN HELP HER

Question 21

Part III: Origin of the doctrine and its conditions - -But does this action exist? Can you sue your own state in damages for breach of EU law?

Answer 21

No textual base in the Treaty

• THIS SCENATIO HERE OBVS NOT SUPRISING FOR US – supremacy isn’t in treaty neiher this- court has invented doctrines to increase effectiveness of eu law and increase protection of infividual rights.
• In lots of MS, this action did not exist until:

Question 22

Part III: Origin of the doctrine and its conditions -In lots of MS, this action did not exist until:

Answer 22

Case C-6/90, Francovich

FAILED TO IMPL- BREACH OF EU LAW

Question 23

Part III: Origin of the doctrine and its conditions -facts of francovich?

Answer 23

Italy failed to implement an EU directive protecting employees in the event of their employer‘s insolvency. The Directive guaranteed payment of wages owed by employers in the event of insolvency. The applicants argued that Italy (the state) was liable to pay them the sums owed by their (insolvent) employer. Had Italy implemented the directive correctly, they would have been entitled to payment of wages under Italian law.

Question 24

Part III: Origin of the doctrine and its conditions - in case of francovich is that possibly direct effect? / indirect effect?

Answer 24

Direct effect? – would that help mr fran- thi is where these facts 2 sort- what happened was according to directive, the guaranteed payment of wages, used to fund, probl was, wasn’t clear according to directive who has to ay into that fund, how that fudn is admisntered, court said direct e ffeg doesn’t work bc his right is not specif precise. No direct effect.

-Indirect effect? – he faced sit under which eh would have got nithing even though very clear italt infringed his right an eu law .

Question 25

Part III: Origin of the doctrine and its conditions - what was held in francovich?

Answer 25

‘The full effectiveness of [EU] rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of [EU] law for which a Member State can be held responsible’ [33]

‘It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of [EU] law for which the State can be held responsible is inherent in the system of the Treaty.’ [35]
This reasoning is assessed in EU handout, pp. 86-87

Question 26

reasoning behind francovich?

Answer 26

Reasonign : it becomes very clear wwhy franc may full into judicial implementation – remebr box on slide for last week – ANTOAL PROCEDURAL ECONOMY/EFFECTIVENESS- period of judicial restrainr, very end realise its not blaanced, but in early 90’s looked at factortame 1 and how did the court reason, didn’t reason with priacival impossibility, not excessively diff- no use words full eccetivens,s, putel off judicial intervention.- and we see same reasoning in frnac at about the same time, the same judges. So franco vich. Falls into period of judicial int.

SO STATE MUST BE LIABLE FOR LOSS AND DAMGE COSTS.

Question 27

Part III: Origin of the doctrine and its conditions - take home message from francovich?

Answer 27

1. CJEU established the principle of MS liability for breach of EU law
2. EU law remedy - Eu law rem – jduical restraint (no eu law rem) changed early 90’s franc- clear change- created by eu law. – breach occurred was non implementation fof directive, case law estended this,- ……rise ms liability

Question 28

more on take home message?

Answer 28

Breach of EU law in Francovich = non-implementation of directive
Extended in later case law: any violation of EU law by a MS can give rise to MS liability claim

Core EU conditions for state liability claims in Francovich
Check with textbook; these conditions were consolidated in Joined cases C-46 & 48/93, Factortame III/Brasserie du Pecheur

Question 29

extra on take home message?

Answer 29

This year= orign of doctrine, now look at conditions, also in franc, court laid down, again this si something itn- why because ein riva only 10yrws warlier, there are no eu law governing .. , all national stuff. Court established eu conditons. , actually laid down inf rnaac, but later qualiefied in fact.

Question 30

Part III: Origin of the doctrine and its conditions - what are the joined case?

Answer 30

Joined cases C-46 & 48/93, Factortame III/Brasserie du Pecheur

Three EU conditions for MS liability claims = „test“ for MS liability

Question 31

Part III: Origin of the doctrine and its conditions - what about this three conditions?

Answer 31

Fact – 3 conditons NEED TO REMEMEBR FOR EXAM - - test if u like – lecute give u background and messages and tests to remebr – extra reading – more understanding and commentary- then need ur critic analusis plus cont

Question 32

Part III: Origin of the doctrine and its conditions - what are the three conditions?

Answer 32

1. EU rule infringed must be ‘intended to confer rights on individuals’
2. Breach of EU law must be ‘sufficiently serious’
3. causal link between the breach and the damage sustained by the individual

3 CONDITONS V IMPORTANT TO KNOW

Question 33

Part III: Origin of the doctrine and its conditions - condition 1 in depth?

Answer 33

Condition 1: the EU right does not have to be sufficiently precise and unconditional

-MS liability can apply even if the conditions for direct effect are not met (that was the case in Francovich)

-Cond 1 – eu right does not have to be suff precice and uncond
Ms liabiltyi can apply even if conditons for direct effect not met.

Question 34

Part III: Origin of the doctrine and its conditions -so the joined cases what?

Answer 34

Joined cases C-46 & 48/93, Factortame III/Brasserie du Pecheur

3 uniform EU conditions for state liability claims

-WE NOW WE HAVE 3 UNFIROM COND FOR STATE LIABILITY – UNFIROM MEAN THESE CODN APPLY IN EVRY MS

Question 35

Part III: Origin of the doctrine and its conditions - what about time limits?

Answer 35

But what about time limits, level of compensation, causation, which court do you have to go to?
Governed by national procedural law  „national procedural autonomy“, subject to EU safeguards of equivalence and effectiveness (Case C-6/90, Francovich [42-43])

Question 36

Part III: Origin of the doctrine and its conditions - TIME LIMITS IN DEPTH? e.g?

Answer 36

3 EU COND – something to be filled- what about time limts, what type of dam to u get. E.g telephone company gets. – e.g which court mag istrateds ct ourt of appeal, high court eu law does not govern this, this si governed by national PROCEDURAL AUTONOMY. This is what curt saif in franc- subject to equivalence and efectives (safeguards) which is ewhwy ms liability for breach of eu law is an hybrid action. Hybrid means this scenario
Its not fuly governed by eu , neither is fully governed by npa. Its somewhere in the middle s= its as hybrid. – means can apply eu cond and npa IN EXAM.

Question 37

Part III: Origin of the doctrine and its conditions - ms is a what action consiting of what?

Answer 37

MS liability for breach of EU law = hybrid action, consisting of (a) 3 core EU conditions and (b) national procedural elements (these vary from MS to MS)

Question 38

Part III: Origin of the doctrine and its conditions - what is it possible to do here?

Answer 38

It is possible to combine (a) and (b) in one problem question!

-POSSIBLE TO COMBINE BOTH ELEMENTS IN PROBLEM - EU COND AND NPA – why did it not simply fullyl harmonise all – ms liability- would ahev eben easier and ensured it was the same- same in all ms. One poss argument

Question 39

Part III: Origin of the doctrine and its conditions - Why did CJEU opt for this „messy“ scenario instead of harmonising all the elements of a MS liability claim?

Answer 39

One possible arg.: political decision to get national courts on board, who can still apply parts of their national procedural law

Question 40

Part III: Origin of the doctrine and its conditions -

Harmonising claim in other words?

Answer 40

THAT remember nowhere in text of traties, and learnt last week according to procedural lawyers, ahrmonisng procedural law is very sensitive topic. Very figgicult. If harmonise full doctrine that is big intervention itno rpcedural alw. My feleign is didn’t want to do that. Wasn’t political decision tog et national corts on board. National courts apply own national procedural law and can dot his here. This bascally is to make sure that its effective. So conditons apply throughtout the union. This ehre is to please the national couts.
Ned to have national courts on board because theyre going to apply it.

Question 41

example of combing ms and national procedural auton?

Answer 41

The UK fails to implement EU directive x into national legislation. The Directive contains workers rights. Uber driver A thinks that her rights are infringed by Uber. She did not receive sick pay and thus suffered losses. She wants to sue the UK for breach of EU law. The UK has a fictitious law that limits the liability of the state when exercising its legislative function. It requires applicants to pay court fees (advance deposit) of £50,000. A does not have that much money.

Can A bring a state liability action for her losses against the UK?

Question 42

answer to question?

Answer 42

Short problem q – combing a and b – read as written.
If look at 3 fran c conditions – doesn’t say anything about court fees. That means … they are coverend by NPA subject to equivalence and effectienes. U apply the effectivenss test. Does that law make effectively diff to exce right. Clear scenario according to which NPA IS BREACH EFFECTIVNESS COND OS INFRIGNED . A and b are present,

1 hint- q is can a brign state liability for her losess- against uk- this si only ms liability q – should be clear from this. This is if u have ms liability q in exam this is what ti will look like also. NOT A Q ABOUT DIRECT EFFECT SO IF U EXPLAIN TO ME ON 1 PAGE WHY A CANNTO RELY ON DIRECT EFFECT UR WASTING UR TIME. DO NOT DO IT.

IF I GIVE U DIRECTNEFFECT Q IT IS CLEAR FROM END OF Q
SO suggest do in exam- dotn start reading prob from beginning- decide in begginging go well then bottom read q – don’t know anything. Start with bottom- read question first itwill tell u – direct effect or frr movement f goofs etc.. Don’t waste time.

Question 43

Part IV: The sufficiently serious breach condition - when is sufficently serious and case?

Answer 43

When is a breach of EU law „sufficiently serious“?

ct in Factortame III/Brasserie du Pecheur [55]:

-decisive test is whether a MS ‘manifestly and gravely disregarded the limits on its discretion’

Question 44

Part IV: The sufficiently serious breach condition -more about this breach test?

Answer 44

nto really that helpful cos questionation what is manifestly, what is gravely. – u can see that this is diff test to fulfil and burdern on proof is on u as indiiv, have to show ms mandifestiy inestived, when u do tha – use 5 facots asn u need to remeebr them as well
These factors that u aply figure out whether breach of eu law suff serious NEXT PAGE

Question 45

Part IV: The sufficiently serious breach condition - what are the factors to indicate it?

Answer 45

Factors indicating a sufficiently serious breach (Factortame III/Brasserie du Pecheur [56]):

a) Degree of clarity and precision of the EU rule infringed
b) Amount of discretion left by that rule to the MS authorities

This often depends on (a) above; e.g. the more vague or ambiguous a provision of EU law, the more discretion

c) Intentional or involuntary infringement of EU law?
d) Was the error of law excusable or inexcusable?
e) Did guidance by EU institutions contribute to the breach?

Question 46

Part IV: The sufficiently serious breach condition -factors in other words?

Answer 46

1st fact- degree – the clearer the eu law, the more likely it is that breach is suff serious , if the eu law in question is unclear or in precise, the less likely is that the breach is suff serious
2nd – amount of discres – depends quite a lot clear precise eu law actually is – more big ambi more discretion ms- more discretion based on these fsctors the less likely it is that rbeach suff serious
3rd – if breach is intentional – ms intentional breach eu – high likely breach suff serious- fi breach involuntarily, that reduces likelihood breach suff serious
4th error of law – in excusable – bc eu provision very clear – means higher likelihood breach suff serious
5th did guidance – that can happen , for e.g if u have guidance by eueropena commission don’t know ho to implement alaw/directive bc directive very ambig unclear and they jsu ask commison, commis ac gives guidance that reduces likelihoof that breach is suff serious, bc ms followed the guidance, often eu institution.
At the end of the day u apply this 5 factors, In order to figure out whether breach suff serious- end want u to waver , look these factors combine what u think, ##

Question 47

Part IV: The sufficiently serious breach condition -overall what should we be assessing with these factors?

Answer 47

Overall did mandifest etc
So las telement
Should be
WIEIGHING OVERALL WEIGHING FINAL ASSESS OF THESE FACTORS- AND THIS IS VERY ABSTRACT -= exercise sheet. Mentioned this earlyier, based on question on next.

Question 48

Part IV: The sufficiently serious breach condition -another example question?

Answer 48

Article 5 of the (fictitious) EU Consumer Protection Directive 10/2003 states that ‘where a contract is concluded online a consumer should have the right to return the product within a reasonable period of time.’

The UK implementing legislation allows a consumer to return the product within 3 months. The UK had consulted widely on what would be deemed a reasonable period for return before passing the law in 2005. It had even asked the EU Commission for advice and the Commission had no objections. In 2006, Fred purchases a DVD online. After 4 months Fred attempts to return the DVD, but this is refused. The money for the DVD is gone. A few months before this happened, the CJEU had decided that the a “reasonable” period of time according to art. 5 of the Directive must be at least 4 months long.

Advise Fred as to whether he can bring a state liability claim against the UK for breach of EU law.

Question 49

Part IV: The sufficiently serious breach condition answer -to q part 1?

Answer 49

Uk implemetns that directive – allowes within 3 months? – what is reasonable period and asked commission – 4 months and is not allowed- few months before this happened cjew said reasonable period 4 months logn, whenever court of justice itnerp directive- it is the law- .. It is law that applied fom very beggiming of when directive came into force.

Question 50

Part IV: The sufficiently serious breach condition- structure for a q like this?

Answer 50

Sheet = STRUCTURE FOR STATE LIABILTIY- CONTAINS 3 COND AND 5 FACTORS- WANT U TO ANSWER Q’S.- FORM OF VERISON ONLINE.

1 . EQUIVALENCE INFRIGENED 
2A. LEGISL
B. LESS LIKELY 
C. LESS 
INVOL
EXCUSABLE
YW- CHANGED MONTH
NOT SERIOUS
YES CAUSAL INK- LOSS OF MONEY FOR DVD

Question 51

Part IV: The sufficiently serious breach condition -answer to q part 2?

Answer 51

Answer 1st q – yes – article 5 of the directive is infringed bc the court of justice says , reason of a period means atleast 4 months long, cj says is the law, the uk said 3 months0 that is too much that is wnhya rt 5 is breched- freds right is right to return – that means according to cj- 4 months- ¾
That is really impotant – had q about what is breach of eu law , what is suff serious- these are 2 diff things- need breach of eu law first- if don’t have breach of eu law THERE IS NO MS LABILITY- NO POINT GOING THROUGH ALL THOSE COND- NOT GOING TO E SUCCE- have to establish a breach first –

Question 52

Part IV: The sufficiently serious breach condition - answer to q part 3?

Answer 52

so 2nd – is breach suff serious – did uk manifestly engravely disregard- then srted with a – what launch of state breach eu – that not part of factor sbut reason but that on is good to know – what branch of state brech- WAS IT LEG , JUDICIARY , EXECUTIVE, with the executive, u can be bit stricter than with the legislature, and the least strict u can be cj law, this is jus for u to gage where am I going with this?- how strict am I applying this factors- look at factors, they are vague in itself. The breach is the incorrect implemtnatio fo the directive. 3 months?- it should have been 4- does the clarity postion of eu law infringed make more -/// here say REASONABLE – key term here In article 5 – REASONABLE IS VAGUE.. So there is a higher amount of discretion, makes it less liely that breach suff serious- does amount ? C –

Question 53

Part IV: The sufficiently serious breach condition - answer to q part 4?

Answer 53

• again reasonable- its vague term- high mount of discre- that spec case- often depends on a- so way u argue in b will often be the same – is the breach intentional or invol- it is invol b u had consulted widely, it tried to do its best, was the error of law excusable or inexcusable- it was excusable bc u consulted widely.
  Yes because commission had no objections with 3 months – uses likelihood- not serious cos all factor actaklly counting not suff serious.
  So uk did nt reval disregard lim of discretion
  2rd factual condition- causal link?- YES THERE IS IBECASUE HAD UK IMPLEMENTED DIRECT CORRE- FRANK WOULD HAVE BEEN ABLE TO RETURN DVD AND GOT MONEY BACK.
  AT TEND BC BREACH NOT SUFF SERIOUS- claim will fail.. That’s basically how u can solve it. In an exam. By applying these 3 factortame cond and the factors, as said in tutorials, again look at prob q for state liability aswell.

Question 54

Part IV: The sufficiently serious breach conditionconclusion of answer?

Answer 54

There was a breach but not suff serious – once cj decided for months this law from beginning – only breach wehther that breach was excusable, suff serious. This is standard that applies in England aswell. Clarifies a law banking and financial servies act. – breach here is 3 months – fact did not know this does not eliminate breach .

Question 55

Part IV: The sufficiently serious breach condition- When is a breach of EU law „sufficiently serious“? [contd.] - what if ms has no discretion and breaches
?

Answer 55

What if a MS has no discretion and breaches EU law?

E.g. MS doesn‘t implement a directive at all. It has to implement it (no discretion).

Question 56

Part IV: The sufficiently serious breach condition- When is a breach of EU law „sufficiently serious“? [contd.] - what was said about this?

Answer 56

If the Member State was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (Case C-452/06, Synthon [38])

Question 57

Part IV: The sufficiently serious breach condition- When is a breach of EU law „sufficiently serious“? [contd.] - so basically about this?

Answer 57

If no discretion almost automatically means breach suff serious

Question 58

Part IV: The sufficiently serious breach condition- When is a breach of EU law „sufficiently serious“? [contd.] -overview of breach?

Answer 58

MS liability for breach of EU law – an overview:

What kind of EU law can be breached: any

The action is brought against the MS (e.g. UK, France), but which organ of the state can commit the breach?
Factortame III/Brasserie du Pecheur [32]: „whatever be the organ of the state whose act or omission was responsible for the breach“

-We can breach any eu law – we know action but which order of state can commit- WHATEVER BE THE ROGAN OFS TAR THAT ISR EPSONSIBLE

Question 59

Part IV: The sufficiently serious breach condition- When is a breach of EU law „sufficiently serious“? [contd.] -overview continued? - good q to ask

Answer 59

MS liability for breach of EU law – an overview:

[contd.]

Which organ of the state can commit the breach? -ALSO WHY ASK – what branch of state breach EU – good when anserr how muchd iscr give that particl branch

Question 60

Part IV: The sufficiently serious breach condition- When is a breach of EU law „sufficiently serious“? [contd.] -Which organ of the state can commit the breach?

Answer 60

Administrative authority: e.g. incorrectly applying an EU Regulation or national law implementing a directive (Case C-452/06, Synthon)

National legislature: e.g. Francovich, Factortame III

National judiciary: e.g. national court of final appeal infringes obligation to refer under art. 267(3) TFEU (Case C-224/01, Köbler; Case C-173/03, Traghetti; Case C-160/14, Ferreira da Silva e Brito)

Question 61

Part V: MS liability for breach of EU law – an overview 1?

Answer 61

MS liability for loss/damage caused by a judicial breach of EU law

Ms liablity for loss dmage- supreme national court – itnerstinly also applies if the supreme national court doesn’t follow the eu rule that supremaxy of eu law is uncodnitonal, that what cj says, ucnonditonal, absolute, that would make possible case dor ms liability claim.

Question 62

Part V: MS liability for breach of EU law – an overview 2?

Answer 62

MS liability even applies to violations of EU law by a supreme national court (Case C-224/01, Köbler [50])
The 3 Factortame conditions apply (Köbler [52])

Question 63

Part V: MS liability for breach of EU law –When is a judicial breach of EU law sufficiently serious? - over 3?

Answer 63

“only in the exceptional case where the court has manifestly infringed the applicable law” = manifest error (Köbler [53])
the Factortame factors apply (Köbler [55])
E.g. sufficiently serious (+) where the judgment was made in manifest breach of the case-law of the CJEU (Köbler [56])

Question 64

Part V: MS liability for breach of EU law –When is a judicial breach of EU law sufficiently serious? -this in other words overview 3?

Answer 64

3 factortame con apply- simply apply to judiciary breac asweel – difference here , once judiciary breach suff serious, that’s very high standard to met, only in the exceptional case, where court manifestly infringed applicable alw, again factorfame factor supply, keep in min test, very difficult to apply. That can be case, where judgement made in manidfest breach of case for e.g if national court, intrumples directive, uk supreme court and clear court of justice, lets take article 5 of our drectiv ein freds case, reasonable time cj 4 months in 20808 uk supreme corut said no 3 months, ti doesn’t even mention cj case alw ,no refer, thatr would be manifest breach of … because uk supreme court didn’t even DISCUSS IT- CONSIDER IT MANIFEST BREACH.

Question 65

what about these next parts?

Answer 65

Part VI: Francovich-liability critically assessed

Part VII: Köbler-liability critically assessed

Part VIII: Summary

-THAT WAS HOW THE LAW IS.- START PART VI- stuff more RELEVANT FOR ESSAY QUESTION
1ST PART FRED = EXAM PROBEM Q-
NEXT ONE IS WHHY DOTN WE LIKE THE ALEW.

Question 66

Part VI: Francovich-liability critically assessed - what about francovich?

Answer 66

Francovich-liability assessed

-European tort
Criticism: radically altered Rewe and eroded national procedural autonomy
Criticism: outcome-driven reasoning without a textual base

-Pro: better enforcement of EU law + greater citizen empowerment
Contra: low levels of litigation and success [Harlow]

-Franch = europen tort – take home mess for franch- criticsm is – remember what court said, no new eu remedies, that was a lie, because in frnac we have an eu remedy, so court radically changed and awarded national procedural autonmy, with no base in tedxt of treaty..

Question 67

Part VI: Francovich-liability critically assessed -what about menti meter?

Answer 67

Next bit –
Menti meter- does ms liability for breach of e law lead to better enforcement of eu law and greater citszin empowerment…
Harlow says no bc If look at level of lit and succ it is tiny and the main prob is , the sufficiently serious codnitio, bc way it is applied in national courts, they require a really high standard for applicants.

What is incentive- if claim succ- own national corut having to pay famages maybe that’s 1 of reason, eu remed that u have to apply - …. That spec low level lit and uscces low succe mainly cos suff serious breach cond is not fulfilled.

Question 68

Part VI: Francovich-liability critically assessed -continued arg of franco?

Answer 68

Francovich-liability assessed

[contd.]
Pro: better enforcement of EU law + greater citizen empowerment
Contra: majority of MS liability actions are brought by big corporations, citizen enforcement is a fantasy [Harlow]
Counter-criticism: data does not show this [cf. Condon, van Leeuwen]

Contra: „sufficiently serious“ breach requirement = highest hurdle for claimants in practice [Leczykiewicz]
Counter-criticism: mere possibility of a MS liability claim incentivises MS to comply with EU law (deterrent)

Question 69

Part VI: Francovich-liability critically assessed -counter arg in clearer words?

Answer 69

Counter crtis – condon – data does ot show this- actually have claims in employement field, where employees go toc ourt and sue the ms for incorrect implementation of driectives, so not just big corporations

T- suffi serious is a problem – that shighest- that is correct – u could say okay fine but the mere possibility of a ms liability claim incentive ms to comply with eu lw, th mere fact that we have that option whether we rely on not, incentives ms to implement directive effectively, becsuse tey do no want to be brought to ct, sued in damages.Another critiscm against coutner crit- that does not justify why breach has to be suff serious- cold be ANY BREACH. And if we have that – that will rel y ms to comply with eu law.

Question 70

Part VI: Francovich-liability critically assessed -francovic part continued part 3?

Answer 70

Francovich-liability assessed

[contd.]
3 uniform Factortame conditions are not applied uniformly in judicial practice in the MS, particularly the „sufficiently serious“ breach condition [Condon/van Leeuwen]

Hybrid nature of the remedy does not translate into uniform protection in the MS
MS liability regime shows significant diversity in application in the MS despite being an EU remedy

Question 71

Part VII: Köbler-liability critically assessedkoblers argument ?

Answer 71

Köbler-liability – concerns and implications

MS liability claim in UK High Court for judicial breach of EU law by UKSC: High Court may have to assess whether UKSC erroneously interpreted EU law
Turns the hierarchy of courts upside down

Legal certainty: Köbler-liability allows litigants a second chance to raise a legal question apparently resolved in the primary action
Counter-arg.: balance between legal certainty and effective judicial protection of EU right needed = „manifest error“ required

DO EXTRA READING FOR THESE

Question 72

Part VII: Köbler-liability critically assessedconcerns of kobler?

Answer 72

Köbler-liability – concerns and implications

[contd.]
What‘s the politics behind Köbler-liability? Curbs tendency of national courts to dodge the preliminary reference procedure
P: Köbler-liability must be handled with care as EU judicial order relies on cooperation between CJEU and national courts

 You will understand this argument after the lectures on preliminary references!

Question 73

Part VIII: Summary?

Answer 73

Summary – Key messages

Essence: MS has breached EU law. This causes harm to an individual. The MS has to pay for it. You can sue your own state in damages.

EU remedy, but not fully harmonised (hybrid action)
3 EU conditions for MS liability claims (Factortame III)
Any organ of the state can commit the breach, even the judicary and the legislature.
When is a breach of EU law sufficiently serious? Know the 5 factors (Factortame III)

Does MS liability for breach of EU law lead to better enforcement of EU law + greater citizen empowerment = controversial

Question 74

case list-

Answer 74

Case list

Case C-6/90, Francovich
Joined cases C-46 & 48/93, Factortame III/Brasserie du Pecheur

[Sufficiently serious breach]
Case C-392/93 British Telecom
Case C-5/94 Hedley Lomas

[MS liability caused by judicial breach of EU law]
Case C-224/01, Köbler
Case C-173/03, Traghetti
Case C-160/14, Ferreira da Silva e Brito

Question 75

learning objective?

Answer 75

Understand the development of the doctrine of Member State liability
Understand and apply the test for Member State liability
Critically assess the scope of application of the doctrine of Member State liability