State Liability

Question 0

Principle of national procedural autonomy

Answer 0

Equivalence : rights derived from EU should be subject to equivalent procedures as national rights

Practical possibility : national rules should not render the exercise if EU rights practically impossible

Question 1

Francovich and Bonafaci v Italy

Answer 1

Facts - Italy failed to implement a Directive on time

ECJ held - MS are obliged to compensate individuals for breach of EU law

Question 2

Three stage test

Answer 2

1) Law intended to confer rights

2) sufficiently serious breach of that law by the state
- Brasserie; Factortame - sufficiently serious breach
- ex parte Gallagher : if he MS has “manifestly and gravely disregarded the limits of its discretion”
- ex parte BT : wrongful implementation was in good faith, so no SL
- Dillenkofer : complete non implementation was sufficiently serious
- ex parte Hedley Lomas : where the MS has no discretion, any breach would be sufficiently serious

3) direct causal link between the breach and the loss suffered

Question 3

Remedy

Answer 3

Damages

The substantive elements if the remedy is left to the national courts to decide, subject to two principles

• equivalence : rights derived from EU should be subject to the same treatment as national laws, Transportes Urbanos
• effectiveness : national rules should not make it harder to obtain reparation. The remedies should be effective, Brasserie; Factortame -

Question 4

Against a state or an organ of the state

Answer 4

Kobler v Austria : national courts of last resort could be liable

Davis (2006) - the state will be liable, no matter which of its organs is responsible for the breach