State Liability

Question 1

Francovich and Bonifaci

Answer 1

Established the principle of state liability

Facts: Italy failed to implement a directive and the deadline for implementation has passed. The Commission had found Italy in breach of its obligations under EU law.

Test for state liability

1) The result by the directive should entail the grant of rights to individuals
2) It should be possible to identify the content of those rights on the basis of the directive
3) There must be a causal link between the breach and the loss/ damage done

Question 2

Brasserie de Pecheur

Answer 2

Brasseries seeking damage because Germany stopped them from importing Beer into Germany

Test for state liability

1) The rule must intend to confer rights on individual rights 2) the Breach must be sufficiently serious
3) 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

The breach must be sufficiently serious - what does it mean?
Factors to consider
1) The clarity and precision of the rule breached
2) The measure of discretion left to MS by the rule
3) Whether breach was intentional or excusable
4) Responsibility of EU institution in breach
5) Extent to which MS adopted or retained national laws contrarary to EU law

Question 3

Factortame

Answer 3

State could be held liable for these breaches (Not only for the failure of implementing directives, but also applicable for any breach of EU law)

Brought by Spanish Fishermen as a result of a statutory requirement for individuals/ companies owning fishing boats and fishing in British waters has to be british owned

Question 4

R v HM Treasury, ex p BT

Answer 4

Facts: BT sought damages for losses it suffered following from the manner in which the UK implemented a directive

Court: agreed that the UK had misunderstood what was required by the directive and incorrectly transposed it into national law - but it was held not to be liable in damages because the breach was excusable for a number of reasons

1) The lack of precision in the relevant provision of the directive
2) The UK’s interpretation of what was required was made in good faith
3) The same interpretation the UK had also been made by other MS

Question 5

Hedley Lomas

Answer 5

The second condition in Brasserie du Pecheur ‘the breach must be sufficiently serious’

ECJ: made it clear that the sufficiently serious test was not confined only to situations in which MS had wide discretion as the court had indicated in Brasserie Du Pecheur, but it will also apply to situations where the MS has limited or no discretion at all

Question 6

Dillenkofer

Answer 6

Resolve the conflicts of the Francovich and Brasserie du Pecheur Test

Court of Justice: Francovich only applies when the state has failed to take any steps in implementing a directive. But if someone passes the Francovich test, they will also breach the Brasserie du Peucher test because if one fails to take any steps to implement ad directive is automatically a sufficiently serious breach - therefore Brasserie du Pecheur test has also been satisfied

Question 7

Courage Limited v Crehan

Answer 7

Established that there is also liability for damages caused to individuals by infringements of EU law arising from breaches of EU competition law by private undertakings

Question 8

Kobler

Answer 8

State liability has now been extended to include breaches of EU law made by national courts where the 3 Brasserie du Pecheur conditions can be determined