State Liability Flashcards
Faccini Dori; Wagner Miret
The remedy is left to damages where both indirect effect and direct effect are unavailable.
What provisions set out the procedure? What is procedure and what is the weakness?
Art 258-260 -
- Initial action brought declaring that there has been a breach.
- Follow-up CJEU judgement determining sanction.
Time consuming! Takes up to 2 years per action.
Factortame (CJEU)
Even if direct effect was available, it may not be sufficient - and state liability may also be available.
Hedley Lomas (2 points regarding supremacy)
State liability is a corollary to Supremacy laid down in Simmenthal.
To protect individual rights, just as individuals can have legislation disapplied through direct effect, they can also obtain damages for application of legislation which SHOULD have been disapplied.
Name the three phases of state liability
- Deference to national procedure
- Intervention: reign of state liability
- Retrenchment: state liability is available, but difficult to satisfy.
Phase 1 (one case)
(Rewe)
No general EU law remedy available. Any remedies for breach of DIRECTLY EFFECTIVE (only) EU law were to be set by national law.
Subject to two requirements set by CJEU, still relevant today.
- Equivalence
Procedures and remedies cannot be less favourable than those for similar domestic actions. - Effectiveness
Cannot make it “impossible in practice” to exercise the rights.
How was phase 2 justified?
- Sui generis legal order;
2. Principle of loyal cooperation (both art 4(3) TEU)
facts in Francovich
Compensation fund must be set up compensating employees of bankrupt companise. Not implemented properly in Italy and direct effect could not succeed.
Justification in Francovich (4 points)
Full effectiveness of EU law
Conferring rights on individuals
State Liability is a constitutional principle of EU law.
And where MS have ‘no real discretion’ whether to implement
Three conditions in Francovich
- Result of Directive must confer rights on individuals
- Rights of identifiable content
- Causal link between breach of State’s obligation and losses sustained by individuals
What 4 questions were left over after Francovich?
- Is state liability only available for non-implementation of Directive?
- Is it only available where provisions don’t have direct effect?
- Is fault by the State necessary? Mitigation?
- What counts as a State?
Why were the parties in Brasserie and Factortame III not satisfied until they received damages?
Both Brasserie (Art 34 TFEU) and Factortame (Art 49 TFEU)
were directly effective Primary EU law. But this took a decade of litigation and the businesses suffered in the meantime.
Can non-Directive provisions be the subject of state liability after Brasserie/Factortame III?
Yes
Three conditions after Brasserie/Factortame III
- Rule must intend to confer rights on individuals (and have identifiable content: Dillenkofer, incorporating Francovich)
- Breach must be sufficiently serious.
- Direct causal link between breach and loss.
Criteria for serious breach in Brasserie/Factortame III (Name 3)
- Clarity of rule breached
- Amount of discretion
- Intentional breach?
- Excusable? Ex. if other MS also breached it, or mislead by the Commission
- Contributory position of EU institutions
Two presumptions of seriousness in Brasserie/Factortame III
- If rule leaves margin of discretion, there is no ‘sufficiently serious’ breach unless ‘manifestly and gravely’ exceeded discretion.
- Conclusively serious if established by infringement/preliminary ruling, or clearly established based on case law
Further problem after Brasserie/Factortame III
Is the breach presumed if MS had NO measure of discretion?
Dillenkofer - type of breach and principle
Non-implementation
Amalgamates Francovich and Brasserie/Ft III
Indicates that their conditions are the same.
What happens if MS has no or minimal discretion? (Name a case)
Dillenkofer
The mere infringement of EU law is enough to raise a presumption.
Which cases involved no/minimal discretion?
Dillenkofer (no implementation)
Rechberger (Incorrect implementation - very minimal discretion, did not allow Austria to impose Temporal or monetary limitations on the direct of a Directive)
Hedley Lomas (Violation of treaty)
type of implementation and Mitigating circumstances in British Telecommunications
(incorrect implementation)
But, Directive was imprecisely worded, SOME other MS failed interpretation, no objection by Commission, and UK acted in good faith.
type of implementation and Mitigating circumstances in Denkavit (2 points)
(incorrect implementation)
Incorrect interpretation adopted by almost ALL other MS
Incorrect interpretation was FORMALLY discussed by the Council
type of implementation and Mitigating circumstances in Brinkmann (2 points)
Incorrect implementation
Very vague, not manifestly contrary.
No direct causal link to damage!
Konle
Where infringements are attributable to a region of the State, the Injured party can claim damages only against that region, and the region is capable of liability.
By implication, devolved powers do not erase liability.
Haim II
Even professional public law bodies can compensate - dental practitioners association
Rechberger v Austria - facts of breach
Incorrect implementation - temporal limitation on provision protecting consumers.
Kobler (2 points)
A breach for a last instance court will only be ‘sufficiently serious’ if a last instance court has ‘manifestly infringed’ EU law.
However, regard must be had to judicial independence.
What is the conclusive presumption in Kobler?
If court of last instance manifestly breached case law of CJEU (failure to submit preliminary reference is a factor)
Traghetti
Affirms Kobler’s principle that a ‘manifestly inappropriate or unreasonable’ interpretation of EU law can also result in liability.
Commission v Italy
Affirmed Traghetti, also adding that res adjudicata does not preclude a claim.
What are three of the factors for evaluating manifest infringement of EU law in Kobler?
- Clarity and precision of rule
- Intentional breach?
- Excusable error?
- Position of EU institutions
- !! Non-compliance with obligation to make preliminary reference (Art 267(3)) !!
