State Liability Flashcards
State Liability - Authors Definitions
Bernard states that “State liability is an important mechanism for ensuring the effectiveness of EU law. Without it, individuals would have no effective means of enforcing their EU law rights against Member States”
Chalmers states that the imposition of state liability can create tensions between national and EU law, but it is an important means of ensuring that the EU’s legal order is respected and enforced by the Member States
de Burca states that It ensures that Member States are accountable for their actions and provides individuals with a powerful means of seeking redress for breaches of EU law.
Establishing State Liability
Francovich - Insolvency Directive protected workers wages, this case in Italy. Time limit for directive had passed, but provision on recovery of wages not clear (DE not avail)
Indirect E - No implementation + no national law to interpret, no IE so what to do?
Art 5 EEC Treaty looked at, must take all measures to comply with EC law obligations, else would be liable - State Liability established
Conditions for State Liability in Francovich
Directive grants rights to individuals
The content of those rights can be identified from the Directive
There needs to be Causal link between breach by the Member State & damage suffered by the injured party
All must be present to find state liability.
State Liability Revised Conditions
Brasserie case, Established that state liability was not an alternative to direct effect but could be used in conjunction with direct effect. A general principle of EU law is that there should be a duty to make good damage that is caused by unlawful acts. State liability can be applied to whichever organ of the State whose act or omission was responsible for the breach.
Revised the conditions for state liability:
1. the rule of law infringed must be intended to confer rights on individuals.
2. The breach must be sufficiently serious *** AND
3. there must be a direct causal link between the breach of the obligation by the State and the damage sustained.
What considerations will determine whether infringement of a rule of law was sufficiently serious to impose state liability?
The clarity and precision of the rule
The discretion left to national authorities
Intentional infringement
Excusable error of law
Did any EU institution contribute to the omission
Example of sufficiently serious breach
Hedley Lomas - Spain was under EU laws on animal welfare like stunning an animal before slaughtering them so they do not experience pain. There were concerns that Spanish abattoirs were not enforcing correctly EU law. The EU Commission investigated and said there was not breaches of EU law in Spanish abattoirs. The UK still prohibited exports of live animals for slaughter to Spain.
HELD: sufficiently serious breach of the free movement of goods - UK liable to pay compensation
Example where there was not a sufficiently serious breach
BT - Was a state-owned company, became privatised, still got held to EU law re: competition for public bodies, BT challenged this after privatisation
Held: Public procurement/competiton rules didn’t apply to now private BT, what UK did was a breach but not sufficiently serious
Can state liability apply to courts?
Kobler - liability would arise only ‘in the exceptional case where the court has manifestly infringed the applicable law’. A deliberate refusal to follow EU law would result in liability.
