State Liability

Question 1

For STATE LIABILITY, what are the conditions and cases that should be mentioned?

Answer 1

• Established in Francovich, affirmed in Brasserie
• 3-limbed test
• – Is EU rule intended to confer a right?
• – Is breach sufficiently serious? (para 55/56)
• – Is there a direct causal link between breach and loss?

• All state organs can be liable; judiciary extremely unlikely to be found liable for failure to refer a case to EU courts
— Koebler

Question 2

For STATE LIABILITY, explain how a sufficiently serious breach is judged.

Answer 2

• Clarity and precision of rule being breached
• Level of discretion allowed to the national/Community authorities by the rule

• Serious breach may be presumed if Member State has not bothered to implement the Directive at all
— Dillenkofer

• ‘Manifestly and gravely disregarded the limits of its discretion’
— Bergaderm

Question 3

The clearer and more precise the rule, and the less discretion afforded, the more likely a sufficiently serious breach would be found

Answer 3

Hedley Lomas

Question 4

Why is threshold for claiming SL against courts high?

Answer 4

Political complications between national courts and between national courts and CJEU

Question 5

If against courts, what are 3 further conditions to be looked at?

Answer 5

Koebler:
1. Preciseness + Specificity of rule

2. If breach was intentional
3. If breach was excusable

Question 6

If SL found and State failed to implement EU rule, what remedy available?

Answer 6

MS to ‘make good damage caused’ to individuals as result of failure
— Faccini Dori

Principles of Equivalence, Effectiveness, Procedural Autonomy