State liability for breach of EU law Flashcards
On which part of the treaty did the ECJ found state liability upon in the Frankovitch judgement
Article 4(3) TEU (and because the full effectiveness of community rules would be impaired if there was no way for individuals to obtain redress)
What is the definition of state liability
The process whereby a state can be held liable for loss or damage caused to an EU member state citizen by breach of EU law. An innovation of the ECJ, not contained in the Treaties
What are the conditions for state liability (and the case)
Brasserie du Pecheur (joined with Factortame): 1. The provision was intended to confer individual rights; AND 2. Breach was sufficiently serious; AND 3. Direct causal link between breach and damage
Which case shows that a bona fide mistake does not constitute a sufficiently serious breach for state liability
Ex BT (badly worded directive misunderstood)
Which case established the doctrine of state liability?
Frankovitch
What is the definition of “sufficiently serious” for the purposes of a Frankovitch action
Brasserie du Pecheur: The state manifestly and gravely disregarded the limits on its discretion
The case that shows that a court of last instance is an emanation of the state for the purposes of state liability
Kobler v Austria (but will only be found to be in breach in exceptional circumstances, eg for deliberate disregard of its duty).
Which case shows that where there is little or no discretion allowed to a state as to how to implement a measure, breach will be sufficiently serious for state liability
Ex p Hedley Lomas (government refusing export licences for sheep)
What is “the state” for the purposes of state liability
The usual Foster test applies.
Which case shows that failure to implement a directive within the time limit is always sufficiently serious to impose state liability?
Dillenkofer (package holidays directive not transposed)
What is the forum for a Frankovitch action
The national courts, subject to national proceures (subject to doctrines of equivalence and effectiveness)
If the individual has suffered loss or damage and the state can’t be held liable, what should you try instead?
Non-contractual liability of the Union
What articles govern non-contractual liability of the Union
Article 340, 268
When will the EU be liable for non contractual adanages
When there is flagrant violation of a superior rule of law and the individual has suffered loss or damage
Need the individual have direct and individual concern for the purposes of non contractual liability of the union?
No
