State Liability

Question 1

ORIGIN of State Liability

Answer 1

Francovich - for failure to implement a directive

Question 2

First set of Rules for SL

Answer 2

Francovich
1) Directive confers rights for benefit of individual

2) content of right must be identifiable from directive
3) causal link between breach and damage

Question 3

Justifications for ORIGIN of State Liability

Answer 3

• rights to individuals
• MS obligations under art.4(3) TFEU
• form of due vigilance (if MS can enforce rights, then so can individuals)
• effectiveness of EU law

Question 4

EXPANSION OF SL: Legislative breach of treaty provisions

Answer 4

Factortame III, Brasserie du Peucheur

• any legislation MS passes is subject to SL test
• also laid down a new test (which in Dilenkofer they said was the same test)

Question 5

NEW justifications for STATE LIABILITY (from Factortame)

Answer 5

Situated SL in context of treaty provisions on liability of EU institutions under art.340 TFEU (based on general principles common to MS)

• this legitimised SL by deriving right from well-established principles of national legal orders rather than creation of CJEU

Question 6

Factortame/Brasserie du Pecheur test for SL

Answer 6

1) Rule of law infringed must confer rights on individuals
2) breach must be sufficiently serious (test: manifest and grave disregard on limits of discretion)
3) direct causal link

Question 7

Ex Parte British Telecommunications

Answer 7

UK implemented Directive wrongly

• YES SL FOR incorrect implementation (otherwise MS can just implement directives how they wanted to)
• NB. No liability on the facts, not sufficiently seriously enough (because the Directive was unclear so UK was bona fide)

Question 8

State liability for executive state action in breach of treaty

Answer 8

ex. parte Hedley Lomas
- minister (administratively/executively) rejected export license which is against FMOG
- CJEU said YES executive decisions can impose state liability
- “Serious” test is more easily satisfied in non-legislative acts, less discretion so liability is “stricter”

Question 9

“Sufficiently Serious”

Answer 9

para.56 of Factortame III/Brasserie du Pecheur
says to consider:

• measure of discretion
• clarity of rule breached
• whether infringement was intentional
• whether error of law is excusable
• whether position taken by Community institution may have contributed towards omission

Question 10

Factortame III and Francovich test test is the same

Answer 10

Dillenkofer

- francovich just didn’t include (2) “sufficiently serious” because non-implementation is in itself sufficiently serious

Question 11

Judicial failure to comply with community obligations

Answer 11

SL expanded to this in Kobler (nb. on facts it wasn’t sufficiently serious enough)

Liability will only be incurred in “exceptional cases where the court has manifestly infringed the applicable law”

Question 12

Tragetti del Mediterranean SPA v Italy

Answer 12

confirmed Kobler

• italy tried to narrow the SL of courts by saying they should only be SL if “intentional fault and serious misconduct”
• CJEU rejected saying that would render Kobler meaningless

Question 13

Why is judicial SL a problem?

Answer 13

• enforcement issues/displacement of precedent

- erodes relationship of national courts and EU (scared of liability)