State liability Flashcards
What it is
Damages for non-implementation that has been extended to fit other breaches of Community law
Background for state liability
EU law created rights but not procedural frameworks to enforce them
Principle of national procedural autonomy emphasised
a) Repayment of charges (San Giorgio)
b) Interim relief (Factortame No.1)
c) Judicial review (Heylens)
d) Civil remedy (Munoz)
e) Damages (Courage)
Source of state liability
Inherent in the Treaty (Francovich)
Initial conditions for state liability
a) Directive must confer rights for the benefit of individuals
b) Content of the rights must be identifiable from the directive
c) Causal link between damages suffered and the breach
d) Award of damages left to the discretion of MS (national procedural autonomy)
Rationale for state liability
Member States should not be allowed to legislate with the result of undermining the effect of EU legislation; when they do, there is a right to action (Factortame (No.3), Brasserie de Pecheur)
Nature of liability
Strict liability where ‘necessary and sufficient’ conditions are satisfied
Critique of strict liability
Insufficient way to circumvent lack of horizontal direct effect
- Rights that are not economic in nature, not easy to quantify in terms of damages (e.g. maternal leave)
- Action against the state is costly and time-consuming, involves many actions
Conditions for state liability
a) Rule of law infringed must be intended to confer rights on individuals (Dillenkofer)
b) Breach is sufficiently serious (Factortame (No.3))
c) Direct causal link between breach and damage sustained, to be decided by national courts (Danfoss)
Test for sufficiently serious breach
Manifest and grave disregard of limits of discretion
List of considerations in Factortame (No.3) e.g. measure of discretion left, if damage was intentional, any error of law etc
Difficulty in satisfying the condition depends on type of action
Categories of actions according to difficulty
Easier
a) Breach of settled case law
b) Executive action in breach of Treaty
c) Legislative non-implementation
Harder
a) Legislative incorrect implementation
b) Judicial failure to comply
Breach of settled case law
Easier (FuB v Stadt Halle)
Executive action in breach of Treaty
Easier; expressly recognised that serious breach is more easily satisfied for non-legislative actions
(Hedley Lomas)
Legislative non-implementation of directives
Easier (Dillenkofer)
Legislative incorrect implementation of directive
Harder (R v HM Treasury ex parte British Telecommunications plc)
Judicial failure to comply with Community obligations
Harder; only where the court has manifestly infringed the applicable law (Kobler, Traghetti)
