State Liability

Question 1

“State liability”

Answer 1

“Effectiveness” - obligation on NC to enforce EU law as far as possible and breaches should have effective remedies as consequences

Question 2

Statutory foundation for state liability

Answer 2

Art 4(3) TFEU: loyalty commitment
Art 340 TFEU: liability of EU institutions
Art 19 TEU: remedies

Question 3

Rewe v Landwirtschaftskammer für das Saarland

Answer 3

MS can determine remedies for breach as long as they’re

(i) equivalent to procedures used for national law breaches
(ii) Practical possibility: conditions make it possible

Question 4

Rewe Handelsgesellschaft

Answer 4

No obligation to create new remedies –> CONTRADICTED effectively in Francovich: you need specific remedies to enforce the Costa new legal order

Question 5

San Giorgio

Answer 5

Despite Rewe Handelsgesellschaft - specific remedy here. Wrongful charge –> repayment of money

Question 6

Factortame

Answer 6

Despite Rewe Handelsgesellschaft - specific remedy here.

Interim relief while Art 267 ruling is happening

Question 7

FRANCOVICH

Answer 7

CJEU started to require NC to provide a specific form of remedy NOT available under national law - STATE LIABILITY procedural autonomy of the Rewe cases

Question 8

Francovich: 3 ways to contend an unimplemented directive

Answer 8

1) direct effect
2) indirect effect
3) NEW state liability

Question 9

Ratti estoppel argument in Francovich

Answer 9

State could rely on its own failure to avoid payments? Sheer luck that neither directly nor indirectly effective

Question 10

Rewe v Landwirtschaftskammer “effectiveness” after Francovich

Answer 10

Not enough anymore that NC’s procedures render it at least practically possible possible for an individual to exercise their right –> NOW a positive obligation on NC to endure they can exercise it

Question 11

Brasserie de Pecheur (joined case with Factortame)

Germany: beer purity law contrary Art 34
UK: registration law contrary to Art 49

Answer 11

Can Francovich be extended to breaches of treaty articles?

CJEU: even more so because they are rights! State liable for breach no matter which organ committed it and not withstanding internal divisions of power

Question 12

Basis for Brasserie de Pecheur

Answer 12

Art 340 (liability of EU institutions) rather than Francovich’s Art 4(3) loyalty and principles of effectiveness argument => MS are to be considered as equivalent to EU institutions!

Question 13

AGM

Answer 13

State can impose liability for breach on individual officials who are overwhelmingly responsible

Question 14

Koebler v Austria

Answer 14

NATIONAL COURTS of final appeal liable for breaches (as set out in Brassier de Pecheur)
HERE: failure to refer under Art 267

Question 15

Brassier de Pecheur CONDITIONS for state liability

Answer 15

1) Rule of law infringed must be intended to infer rights on an individual
2) breach must be sufficiently serious
3) Direct causal link between breach and damage

Question 16

Problematic Brassier de condition

Answer 16

“Sufficiently serious” case law:

Guenter Fuss
Koebler
Traghetti
Healey Lomas
Dillenkofer
British Telecommunications
Denkavit

Question 17

Fuss

Answer 17

Sufficiently serious –> disregard for precedent case law

Question 18

Koebler

Answer 18

Not sufficiently serious but MAYBE just because this was the first time doctrine of LIABILITY OF NATIONAL COURTS was applied - harsh to create and apply it, only warning shots

Question 19

Traghetti

Answer 19

Sufficiently serious because of Koebler (final court liability covered errors of law AND fact)

Question 20

Hedley Lomas

Answer 20

Sufficiently serious –> mere act of breaching treaty laws can itself be sufficiently serious:
left no discretion
clear + precise

Question 21

Dillenkofer

Answer 21

Sufficiently serious –> non-implementation of directive within time limit = sufficiently serious

Question 22

British Telecommunications

Answer 22

Mis-implementaion but NOT sufficiently serious because…
prevision wasn’t clear and precise
good faith interpretation
no precedent to guide UK here

Question 23

Denkavit

Answer 23

Not sufficiently serious because directive was extremely ambitious and almost ALL MS made similar mistakes

Question 24

How is state liability applied in NC?

Answer 24

Marshall: interests on lost profits!
Danske: rules on mitigation of loss are acceptable!

Question 25

Stockholm Lindopark

Answer 25

State liability not excluded by fact that claim could have been brought on basis of direct/indirect effect - reaffirmed in Wells

Question 26

“judicial standards”

Answer 26

low standard on “practically possible” in Rewe v Landwirtschaftskammer –> Francovich

Question 27

Ward on judicial standards

Answer 27

CJEU’s protection of judicial standards went backwards after after Francovich due to the causation loophole
Brinkmann: causation fixing by Germany

Question 28

Transportes Urbanos

Answer 28

CONTRA State liability (i.e. just residual remedy)

It remains open to MS to exclude state liability where claimant has not exhausted national remedies

Question 29

Miri

Answer 29

CJEU backtracked from Lindpark, saying that Francovich action = instrument of last resort

Question 30

Prechal

Answer 30

State liability = second rank alternative to direct/indirect effect, merely a safety net