State Liability Flashcards
“State liability”
“Effectiveness” - obligation on NC to enforce EU law as far as possible and breaches should have effective remedies as consequences
Statutory foundation for state liability
Art 4(3) TFEU: loyalty commitment
Art 340 TFEU: liability of EU institutions
Art 19 TEU: remedies
Rewe v Landwirtschaftskammer für das Saarland
MS can determine remedies for breach as long as they’re
(i) equivalent to procedures used for national law breaches
(ii) Practical possibility: conditions make it possible
Rewe Handelsgesellschaft
No obligation to create new remedies –> CONTRADICTED effectively in Francovich: you need specific remedies to enforce the Costa new legal order
San Giorgio
Despite Rewe Handelsgesellschaft - specific remedy here. Wrongful charge –> repayment of money
Factortame
Despite Rewe Handelsgesellschaft - specific remedy here.
Interim relief while Art 267 ruling is happening
FRANCOVICH
CJEU started to require NC to provide a specific form of remedy NOT available under national law - STATE LIABILITY procedural autonomy of the Rewe cases
Francovich: 3 ways to contend an unimplemented directive
1) direct effect
2) indirect effect
3) NEW state liability
Ratti estoppel argument in Francovich
State could rely on its own failure to avoid payments? Sheer luck that neither directly nor indirectly effective
Rewe v Landwirtschaftskammer “effectiveness” after Francovich
Not enough anymore that NC’s procedures render it at least practically possible possible for an individual to exercise their right –> NOW a positive obligation on NC to endure they can exercise it
Brasserie de Pecheur (joined case with Factortame)
Germany: beer purity law contrary Art 34
UK: registration law contrary to Art 49
Can Francovich be extended to breaches of treaty articles?
CJEU: even more so because they are rights! State liable for breach no matter which organ committed it and not withstanding internal divisions of power
Basis for Brasserie de Pecheur
Art 340 (liability of EU institutions) rather than Francovich’s Art 4(3) loyalty and principles of effectiveness argument => MS are to be considered as equivalent to EU institutions!
AGM
State can impose liability for breach on individual officials who are overwhelmingly responsible
Koebler v Austria
NATIONAL COURTS of final appeal liable for breaches (as set out in Brassier de Pecheur)
HERE: failure to refer under Art 267
Brassier de Pecheur CONDITIONS for state liability
1) Rule of law infringed must be intended to infer rights on an individual
2) breach must be sufficiently serious
3) Direct causal link between breach and damage
Problematic Brassier de condition
“Sufficiently serious” case law:
Guenter Fuss Koebler Traghetti Healey Lomas Dillenkofer British Telecommunications Denkavit
Fuss
Sufficiently serious –> disregard for precedent case law
Koebler
Not sufficiently serious but MAYBE just because this was the first time doctrine of LIABILITY OF NATIONAL COURTS was applied - harsh to create and apply it, only warning shots
Traghetti
Sufficiently serious because of Koebler (final court liability covered errors of law AND fact)
Hedley Lomas
Sufficiently serious –> mere act of breaching treaty laws can itself be sufficiently serious:
left no discretion
clear + precise
Dillenkofer
Sufficiently serious –> non-implementation of directive within time limit = sufficiently serious
British Telecommunications
Mis-implementaion but NOT sufficiently serious because…
prevision wasn’t clear and precise
good faith interpretation
no precedent to guide UK here
Denkavit
Not sufficiently serious because directive was extremely ambitious and almost ALL MS made similar mistakes
How is state liability applied in NC?
Marshall: interests on lost profits!
Danske: rules on mitigation of loss are acceptable!
Stockholm Lindopark
State liability not excluded by fact that claim could have been brought on basis of direct/indirect effect - reaffirmed in Wells
“judicial standards”
low standard on “practically possible” in Rewe v Landwirtschaftskammer –> Francovich
Ward on judicial standards
CJEU’s protection of judicial standards went backwards after after Francovich due to the causation loophole
Brinkmann: causation fixing by Germany
Transportes Urbanos
CONTRA State liability (i.e. just residual remedy)
It remains open to MS to exclude state liability where claimant has not exhausted national remedies
Miri
CJEU backtracked from Lindpark, saying that Francovich action = instrument of last resort
Prechal
State liability = second rank alternative to direct/indirect effect, merely a safety net
