State Liability

Question 1

Process

Answer 1

Define (Francovich)
Factortame developments
Sufficiently serious?

Question 2

Francovich

Answer 2

State liability for breach of EU law where:

Directive confers rights to individual
Right is identifiable in provision of Directive
Breach has caused claimant to suffer loss

Question 3

Factortame

Answer 3

Developed on Francovich conditions (only one real change)

State will be liable where:

Breach infringes rule of law intended to confer rights on individuals
Breach is sufficiently serious
Causal link between breach and claimants loss

Question 4

‘Sufficiently serious’

Answer 4

Incorrect implementation
OR
Non-implementation

Question 5

Incorrect implementation

Answer 5

Breach that ‘manifestly and gravely disregarded the limits on the
exercise of its power’

Clarity and precision breached?
Error is excusable?
Position taken by EU institution contributed?

Question 6

Non-implementation

Answer 6

Always sufficiently serious (Dillenkofer)

Question 7

Kobler v Austria

Answer 7

If court of mandatory jurisdiction fails to make 267 reference, breach only sufficiently serious if failure to refer was made in ‘manifest breach of ECJ case law’