State Liability Flashcards
Development
CoJ were entrusted to create a new legal order to ensure that EU law was effective. Contained within Art 19(1) TEU. Must abide by treaties they have consented to
Francovich and Boniface v Italy (Exception)
Courts must ensure that Community law provisions are given full effect and rights are protected. Community rules would be impaired if individuals were unable to obtain redress when their rights are infringed by a breach of Community law (MS responsible for) MS are required to take all appropriate measures to ensure the fulfilment of Community law. Nullify unlawful consequences of community law. Conditions for State Liability -
1) Conferral of specific rights
2) Identifiable content of those rights in directive
3) Casual link between damage incurred and State’s breach
Brasserie du Pecheur SA and Factormane Cases
Breach of import taxes on beer, and Factormane prevention of fishing in British waters. Direct Effect is a minimum guarantee not enough if State is breaching liability. Basis that if broken obligation then there should be compensation for that damage. Therefore if a state is liable then they should compensate for damages.
What is a sufficiently serious breach, and how do they find it?
Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion. It must be clear they have exceeded their power. May taken into consideration clarity of rule breached, discrete, intentional, error of law excusable.
Case examples of Sufficiently serious breach
R v HM Treasury ex p BT - Possible to breach without being liable, as UK didn’t implement correctly but it was in good faith and kept within words of directive
R v MFF ex p Hedley Lomas - UK refusing to deport live sheep to spain, but had no to do so
Dillenkofer v Germany - Failed to implement an entire directive which can immediately constitute as a serious breach
Scope for Liability
Gerhard Köbler v Republik Österreich - Failure to report a question to the CoJ. If you couldn’t hold a court liable then it would mean that the institution which is protecting your rights can breach them so a state can be held liable if court breach’s state liability. Yet this is an issue as Courts are meant to be separate but are still held to be as liable as other institutions or public bodies. Only for highest courts which have no other remedy
Damages against Private Person?
Competition Cases - Courage v Crehan -The principle of liability for breaches of EU law applies to private parties (cf. horizontal direct effect), at least as regards breaches of competition rules arising from the TFEU. However, the action has not yet been extended beyond competition law
A Residual Remedy
Not entirely sure whether it is a alternative or residual remedy due to autonomy of states. National laws concerning liability must be effective and can’t hold back community law.
