State Liability Flashcards
Why was state liability created?
Inadequacy of direct effect and indirect effect doctrines
Inadequacy of enforcement action against non-compliant Member States
What are the three phases of the CJEUs approach to remedies for breach of EU Law?
- Phase 1 (pre-1991): Deference – focus on national procedural autonomy
- Phase 2 (1991-1996): Intervention – the state liability principle
Phase 3 (since 1996): Retrenchment – the state liability test is difficult to satisfy
What were the two principles laid out in Phase 1: Deference?
Principle of Equivalence
Principle of Effectiveness
What is the principle of Equivalence?
National procedural requirements for claiming remedies for breach of EU law “cannot be less favourable than those relating to similar actions of a domestic nature”.
What is the Principle of Effectiveness?
National procedural requirements cannot “make it impossible in practice to exercise the rights which the national courts are obliged to protect”.
What changed in 1991 as part of Phase 2: Intervention?
In 1991, the CJEU changed its approach and created a right to reparation under which individuals who have suffered losses as a consequence of a sufficiently serious breach of EU law may sue the state in national courts and claim compensation for their losses where the state can be held responsible for the breach.
Under what conditions is a member state required to pay damages for a breach of EU Law?
“The first of those conditions is that the result prescribed by the Directive should entail the grant of rights to individuals.
The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the Directive.
Finally, the third condition is the existence of a causal link between the breach of the State’s obligation and the loss and damage suffered by the injured parties.”
What was the refined test laid out by Brasserie/Factortame?
- “[Union] law confers a right to reparation where three conditions are met:
- [1] the rule of law infringed must be intended to confer rights on individuals;
- [2] the breach must be sufficiently serious;
[3] and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.”
What are some factors that a court could consider when determining if a breach is sufficiently serious?
w The clarity and precision of the rule breached
w The measure of discretion left by that rule to MS or EU institutions
w Whether the infringement and the damage caused was intentional or involuntary
w Whether any error of law was excusable or inexcusable
w Whether the position of a [Union] institution contributed to the omissions
The adoption or retention of national measures or practices contrary to [Union] law
Under Phase 3: Retrenchment what did the case of Dillenkofer v Germany provide?
A unified test -
he conditions laid down in Francovich and Brasserie/Factortame are the same.
w The requirement of a sufficiently serious breach, although not expressly stated in Francovich was “evident from the circumstances of that case”.
• A breach is sufficiently serious if a Member State, in exercising legislative discretion, manifestly and gravely exceeds the limits of that discretion (Factortame).
• If a Member State has no or minimal legislative discretion, the mere infringement of EU law (such as the non-implementation of a directive in Francovich) is presumed to constitute per se a sufficiently serious breach, giving rise to a right of compensation.
What two cases can be used to prove that the sufficiently serious test is correct?
- Case C-140/97 Rechberger v Austria EU:C:1999:306 – incorrect transposition of Directive 90/314 which added a temporal limitation to claims and a limited guarantee for refunds which were not present in the directive
Case C-5/94 R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd EU:C:1996:205 (“Hedley Lomas”) – UK banned the export of animals for slaughter to Spain contrary to Art. 35 TFEU – with no evidence that Spanish slaughterhouses were not complying with EU regulations on the slaughter of animals, the UK export ban was a sufficiently serious breach
What did the case of R v HM Treasury argue?
Breach was not sufficiently serious so as to provide the right to damages.
Moreover, no guidance was available to the United Kingdom from case law of the Court as to the interpretation of the provision at issue, nor did the Commission raise the matter when the [domestic] 1992 Regulations were adopted.”
Is the Internal Organisation structure of a state is relevant?
It is irrelevant - it applies irrespective of the particular authority of MS.
