Phase 3; Retrenchment

Question 1

dillenkofer (2)

Answer 1

unified SL test

same conditions as francovich and brasserie and factortame III

Question 2

dillenkofer

breach is SS if

Answer 2

an MS manifestly and gravely exceeds the limits of their discretions

Question 3

dillenkofer

If MS has no or minimal legislative discretion…

Answer 3

the mere infringement of EU law is presumed to constitute per se a sufficiently serious breach

Question 4

case where MS had no/ minimal discretion and breach was sufficiently serious

Answer 4

dillenkofer

Question 5

case where MS had margin of discretion and breach was not sufficiently serious

Answer 5

British telecommunications

Question 6

SL applies regardless of the…(2)

Answer 6

particular public authority of the MS which is responsible for breach or is responsible for reparation
MS internal structure is irrelevant

Question 7

reparation need not be provided by… plus case

Answer 7

the federal or central administration of the MS

Konle

Question 8

reparation may also be made by…plus case

Answer 8

independent public law bodies vested by the state with regulatory autonomy
Haim II

Question 9

Kobler (3)

Answer 9

SL may apply if breach of EU law can be attributed to a decision of a last instance court of an MS
it is for national law to designate the court competent to decide on such a dispute
BUT regard must be had to the nature of the judicial function

Question 10

kobler

breach is SS only in the exceptional case where…

Answer 10

the last instance court has manifestly infringed the applicable law

Question 11

Kobler

factors to consider in assessing whether a court has manifestly breached the applicable law (5) plus one article

Answer 11

clarity and precision of the rule of law
whether breach was intentional 
whether error of law is excusable
the position, if any, of EU institutions
non-compliance by the court with the obligation to make preliminary references - Art 267(3) TFEU

Question 12

kobler

a manifest breach of applicable law is presumed where…

Answer 12

last instance court made its decision on manifest breach of settled CJEU case law

Question 13

Traghetti (3)

Answer 13

reaffirmed Kobler
manifest breach of applicable law may occur where a last instance court deliberatley flouts EU law AND
when it adopts a manifestly inappropriate or unreasonable interpretation

Question 14

traghetti

national legislation may not… plus case

Answer 14

limit liability only to cases of intentional fault/ serious misconduct of the court
reaffirmed in COM v Haly