State Liability Flashcards
What is state liability?
Individuals may recover compensation from MS where they have suffered loss as a result of the failure of the MS to fulfill its obligation under community law.
What is the authority for state liability?
Francovich & Bonifaci v Italian Republic (no indirect effect as no law in area, no direct effect as private company) Italy liable as should have implemented the directive.
What is the rationale behind state liability?
EC gives rights to individuals, and SL is a catch all where rights should be conferred but other methods of getting the rights are not available.
What are the conditions for state liability?
- The Diretive should entail rights
- Are the rights identifiable?
- Is there a causal link between the breach and the sate’s obligation and loss and damage suffered
What EC legislation does SL cover? What are the authorities?
Articles are covered by SL - Brasserie du Pecheur v Germany, Germany contravened the free movement of goods at, due to German law. SL allows compensation damaged parties.
R v Secretary of State for transport. Describe.
Breach ECC treaty article as effectively banned Spannish fishermen. ECC treaty conflicted with Brittish law, so could not be interpreted, therefore SL was necessary to remedy loss of Spannish Fishermen.
What were the SL conditions refined to?
- Rule infringed must be intended to confer rights
- The breach must be significantly serious
- Must be a causal link bettween the breach by the state and the loss.
What does sufficently serious mean in this context?
Where a MS has manifestly and gravely disregarded the limits of its discretion.
Factors;
Clarity and precision of rule
Measure of discretion left to MS
Whether breah was intentional/excusable
Responsibility of ECC in breach
Extent to MS retention of national laws in breach of ECC law.
BT case of unproven SL.
No breach as lack of precision in directive, other countries had made same error, good faith and no guidance
Hedley lomas
Sufficently serious breach of SL law
