State Liability

Question 1

State Liability

Answer 1

A rule of interpretation of national law in line with a Directive “to the extent possible” otherwise MS must make good any damage caused to individuals by failure to implement.

Question 2

Faccini Dori/Wagner Miret

Answer 2

MS must make good any failure to implement a directive affecting an individual

Question 3

Deference

Answer 3

National rules subject to two limits: equivalence, effectiveness. Rewe

Question 4

Intervention

Answer 4

Right of compensation for losses sustained as a result of a “sufficiently serious” breach of EU law by the state.

Question 5

Francovich

Answer 5

3 conditions - 1. Rights are conferred on individuals by EU law 2. Rights of identifiable content 3. Causal link between breach of state’s intervention and losses sustained by individuals.

Question 6

Brasserie and Factortame III

Answer 6

Extension of SL to any breach of EU law. Refined test to - 1. Rule intended to confer rights 2. Sufficiently serious breach of that rule 3. Causal link between breach of state’s obligation and losses sustained by individuals

Question 7

“Sufficiently serious” factors

Answer 7

Involuntary, excusable, measure of discretion available, clarity of the rule breached, possible contributory position of EU institutions, * breach of clearly established CJEU ruling or clearly established case law.

Question 8

If they are left a discretion…

Answer 8

They must manifestly and gravely disregard the limits of that discretion resulting in state liability.

Question 9

Foster v British Gas

Answer 9

Only against an “emanation of the state”

Question 10

Marshall

Answer 10

NOT against individual/private entity

Question 11

Hedley Lomas

Answer 11

Mere infringement of community law may be sufficient to establish the existence of a sufficiently serious breach

Question 12

Rewe

Answer 12

Equivalence - procedures under national law to give effect to EU law cannot be less favourable than domestic law. Effectiveness - national law cannot make it impossible in practice to exercise the rights under EU law that national courts are obliged to protect.

Question 13

Dillenkofer

Answer 13

Germany failed to implement a directive on package holidays and were held liable to holidaymakers who had suffered losses.

Question 14

British Telecommunications

Answer 14

Imprecise wording however in good faith and other MS made the same error therefore not sufficiently serious.

Question 15

Denkarit

Answer 15

All MS incorrectly adopted directive, not sufficiently serious.

Question 16

Brinkmann

Answer 16

No causal link or manifestly contrary therefore not sufficiently serious.

Question 17

Konle

Answer 17

It is for each MS to ensure individuals obtain reparation. MS cannot blame public authorities and free themselves from liability.

Question 18

Haim II

Answer 18

Association of Dental Practitioners. Kolne also applies to other public-law bodies legally distinct from the state. Community law does not preclude a public law body in addition to a MS from being liable.

Question 19

Köbler

Answer 19

Last instance courts may be held into account for a breach.

Question 20

Traghetti

Answer 20

Re-affirmed Köbler. Manifest breach with last instance courts when they flout EU law or give an unreasonable interpretation.

Question 21

R v SOS ex parte Sutton

Answer 21

MS shall provide remedies sufficient to ensure effective legal protection in fields covered by EU law

Question 22

Rechberger

Answer 22

Temporal limitation on effect of a directive and improper limitation of the obligation to provide effective protection.

Question 23

Article 19(1)

Answer 23

MS shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.