Webcast

Question 1

Breaches of EU law tend to fall into three categories. What are they?

Answer 1

• failure to implement a directive
• failure by a member state to correctly implement a directive
• a member state breaches one of its obligations under the TFEU, typically enacting or maintaining national legislation which contradicts the treaty.

Question 2

What are the leading cases now on state liability?

Answer 2

Brasserie du Pecheur and Factortame III.

Question 3

In Brasserie and Factortame, what did the ECJ say the three conditions were that were necessary for state liability?

Answer 3

• the rule infringed must have been intended to confer rights on individuals
• the breach must have been sufficiently serious
• there must a direct causal link between the states failure to comply with the law and the damage suffered by the individual

Question 4

Conferring rights on individuals, what is meant by an individual?

Answer 4

Companies as well as human beings.

Question 5

If a member state does not implement a directive on time, but the directive does not confer rights on individuals what happens?

Answer 5

No liability will be incurred as the first condition for state liability is not met (confer rights on individuals)(Paul and Others).

Question 6

When will a breach of EU law be deemed automatically serious?

Answer 6

• non implementation of a directive (Dillinkofer)
• manifest breach of ECJ case law (FuB - contracted to work 54 hours per week in excess of max 48 hour under working time directive)

Question 7

How do we test to see if a breach is sufficiently serious?

Answer 7

The test is whether there has been a manifest and grave disregard of the limits of the states discretion.

Question 8

What factors are taken into account in deciding whether or not a serious breach has occurred?

Answer 8

Brasserie and Factortame decided the factors are:

• the clarity and precision of the rule of EU law breached
• the measures of discretion left by that rule to the national authorities
• whether the infringement and damage caused was intentional or involuntary
• whether any error of law was excusable or inexcusable
• whether the position taken by one of the EUs own institutions may have contributed to the breach
• the adoption or retention of national measures contrary to EU law

Question 9

How many of these factors will be needed to establish if the breach was sufficiently serious?

Answer 9

One or two factors have been enough to establish whether a breach was or was not sufficiently serious.

Question 10

Who decides if there had been a direct casual link between the states failure to comply with EU law and the damage suffered by the individual?

Answer 10

It is up to the national courts to determine (according to the ECJ).

Question 11

Who is the state?

Answer 11

The central government of the state concerned.

Question 12

What did the case of Konle suggest?

Answer 12

That ‘member state’ covers all bodies operating in the public law sphere.

Question 13

Is it the member state that pays compensation for the breach?

Answer 13

Haim said reparation for loss and damage caused to an individual should be made by that body.

Question 14

Can it be a serious breach if a national court of last resort fails to seek a preliminary ruling?

Answer 14

Yes. Traghetti discussed this as one of the examples of a judicial breach. These were applied in Cooper.

Question 15

What is vicarious liability?

Answer 15

Where a government employee commits a sufficiently serious breach of EU law, causing loss to the claimant, the latter may bring a state liability claim against the state (AGM v Finland - national employee on TV saying products were defective).

Question 16

Brasserie and Factortame established a number of rules relating to the procedural limits which may be placed on state liability claims, what are they?

Answer 16

• reparation must be made in accordance with national rules on liability (principle of equivalence)
• national rules on recovery of compensation in state liability claims cannot be so framed as to make it impossible or difficult to obtain compensation (principle of effectiveness)
• pure financial loss is recoverable however courts may limit the amount payable (did the try to avoid loss)
• member states can lay down reasonable time limits for bringing state liability claims (Danske said 3 years is reasonable)

Question 17

Which case introduced the concept of state liability and what is it?

Answer 17

Francovich. It holds member states accountable for breaches of EU law.