EU Law - State Liability and National Remedies x2 Flashcards
(186 cards)
1
Q
What case required damages be available in principle for breach of EU law?
A
Courage v Crehan
2
Q
What was the basic principle disabled in Factotame?
A
No interim relief against the Crown
3
Q
When is it more likely the EU will lead it to the national remedies?
A
If court emphasises national autonomy and concerns ancillary procedural rights
4
Q
What was considered unacceptable in Factortame?
A
An absolute prohibition on interim relief
5
Q
What section of what Treaty covers duty of Members to offer remedies and EJP?
A
Article 19 TFEU
6
Q
What case affirmed and extended Marshall?
A
Evans
7
Q
What case said specific remedy required at national if flows from substantive provisions?
A
San Giorgio
8
Q
Duty of Members to make good any damage caused
A
Article 340 TFEU
9
Q
Just remedy under EU Charter
A
Article 47
10
Q
Dekker-Stichting general
A
Pregnant, ETD
11
Q
What created uncertainty in national remedies?
A
Creative national courts displaying national rules in some cases and not in others
12
Q
What case added effectiveness and adequacy to twin principles?
A
Von Colson
13
Q
What case drew a distinction between dismissal on grounds of sex and discriminatory denial of social security?
A
Ex p Eunice Sutton
14
Q
Case allowing Domestic law still primary role in determining conditions for grant of specific remedy required by EU law
A
San Giorgio
15
Q
What two cases show the CJEU being lenient on sufficiently serious SL requirement?
A
Ex p BT and Kobler
16
Q
Who said it was better to refer to national procedural autonomy as responsibility?
A
Dougan
17
Q
Metalgesellschaft
A
Rejected UK argument of failure to mitigate losses to reduce damages
18
Q
Why was there no SL in Ex p BT?
A
The measure was unclear so breach was understandable
19
Q
What three things did Francovich require for state liability?
A
Intended to confer, ascertainable from measure and causal
20
Q
What two rules were disapplied in Marshall?
A
Jurisdictional and substantive
21
Q
Dekker-Stichting judgment
A
Didn’t allow Member to subject redress claim to ‘fault’ nor allow defence of justification
22
Q
Danfoss
A
Virtually impossible
23
Q
What case confirmed that Von Colson goes wider than just sex discrimination?
A
Johnston v CC
24
Q
Academic on the Schoppenstedt test
A
Beutler
25
Who highlighted how Unibet was not erga omnes
Arnull
26
Pizzarotti
No automatic review of res judicata judgment if EU provision adopted AFTER delivery
27
Beutler on SL
Not in regal isolation, court can be held liable if makes it insurmountable and never MI yet doesn't mean it is insurmountable
28
Who argued that SL is a residual remedy?
Prechal and Beutler
29
Von Colson general
Equal Treatment Directive
30
Ex p Eunice Sutton general
Arrears of benefit but no interest
31
Case on rules of evidence and effectiveness
Boiron v URSSAF
32
What did the court say was required for dismissal on grounds of sex in Ex p Eunice Sutton?
Reparation for loss and damage
33
No automatic review of res judicata judgment if EU provision adopted AFTER delivery
Pizzarotti
34
What case said that there is very little difference between Factortame and Fvrancovich?
Dillenkoffer
35
What are the two requirements for national remedies for breach of EU law?
Equivalence and practical possibility
36
If there is no EU remedy required, what is the default position?
NPA/NPR through Article 19(1) TEU
37
Ex p Eunice Sutton judgment
Distinction between dismissal on grounds of sex and discriminatory denial of social security
38
Who argued SL is residual?
Beutler
39
Two examples of application of Rechberger
Com v France; Schmidburger v Austria
40
What did Factortame require for SL test
grave and manifest infringement
41
What case tried to limit lucchini effect?
Pizzarotti
42
What type of case was Marshall (according to Ex p Eunice Sutton)?
dismissal on grounds of sex
43
What is it suggested led to the outcome in Marshall?
Substantive importance of ETD in EU law
44
What case rejected that the breach needed to be intentional for SL?
Traghetti
45
What case did they rely on in Dekker-Stichting?
Von Colson
46
What did the court allow in Factortame?
National court could specify the conditions of th interim relief
47
Lucchini
Res judicata cannot prevent recovery of aid
48
Three cases on equivalence generally
Edis v Ministero; Manfredi and Van Schijndel
49
Case reiterating new legal order reasoning from Van Gend to justify damages in principle
Courage v Crehan
50
Hakenberg on SL
Test is 'as yet unclear'
51
When is it more likely the EU will demand a particular remedy?
if the court emphasise a substantive right and if it concerns a remedial right
52
Unibet
Gambling
53
Marshall II judgment
Both substantive and jurisdictional rules for discrimination in breach of EU law removed
54
Three cases showing uncertainty as a result of creativity of national courts in national remedies
Factortame, Marshall and Evans
55
Case stating that non-tranposition = sufficiently serious
Dillenkoffer
56
What was the first case on state liability?
Francovich
57
What case highlights that it is for the Member to enforce EU law and provide remedies etc.?
Rewe v Land
58
What case did Metalgesellschaft draw comparison with?
Marshall
59
What case affirmed Steenhorst?
Johnson II
60
Despite Steenhorst, what was there no retreat from?
Effectiveness and adequacy
61
What case showed SL applies to executive decisions?
Ex p Hedley Lomas
62
Societe Comateb
Case suggesting that SL is a residual remedy
63
Rejected UK argument of failure to mitigate losses to reduce damages
Metalgesellschaft
64
Example of a remedial right
Damages/compensation (Marshall) or access to court (Heylens)
65
3 remedies available in Unibet
Apply then JR, criminal proceedings or damages for no advertising
66
What was influential in Steenhorst?
State concerns of financial balancing
67
Metalgesellschaft essential remedy
Interest
68
What four cases show an obligation to provide a specific remedy?
Metallgesellschaft, Courage v Crehan, Factortame and San Giorgio
69
Who believed that the CJEU preserved the Rechtsfrieden between EU and Members in SL?
Wegener
70
Emmott v Minister for SW general
Retrospective disability payment rejected
71
Boiron v URSSAF
If national evidentiary requirements make EU law difficult to be effective, use 'all procedures available' to ensure EJP
72
What case stated no need for adequacy of payment for arrears?
Eunice
73
What was the claim for in Marshall?
Compensation for discrimination in breach of EU law
74
Two cases on ETD
Von Colson and Dekker-Stichting
75
What case suggested effectiveness even trumps a basic principle of a Member State
Factortame
76
Conditions for SL in Factortame
Intended to confer, sufficiently serious and causal
77
Johnson II
Even without state concerns of financial balancing, one year bar was compatible with EU law
78
In what case did AG Jacobs suggest if effectiveness is always emphasised then could discriminate in favour of EU law
Van Schijndel
79
Manfredi
If similar domestic actions permit specific damages, allow for EU
80
What case sees CJEU stretching national requirements to ensure effectiveness?
Boiron v URSSAF
81
What is the current approach to national remedies and what case?
Balance EJP with NPA, Peterbroeck v Belgian State
82
What case did the court draw on in Factortame in regard to national remedies?
Simmenthal
83
What case stated that Allowing a claim only for 'reliance loss' is ineffective under ETD?
Von Colson
84
Article 47 EU Charter
Just remedy
85
Why is the decision in Dekker-Stichting DOUBTED?
Allowing consideration of fault wouldn't necessarily have made EU law ineffective or impossible
86
Heylens v UNECTEF
Right to effective judicial review
87
What case stated that state liability arises 'whichever' is the action of the Member State?
Brasserie
88
Courage v Crehan
Damages need to be available in principle for breach of EU law
89
What case said that if EU law requires compensation, the Member cannot use factors such as effluxion of time to affect the value
Evans
90
Who believed Kobler showed excessive deference to Members?
Cabral and Chaves
91
National courts can refuse reliance on EU if claimant abusing rights
Dionysios Diamantis
92
What case didn't allow Member to subject redress claim to fault nor defence of justification because of 'effectiveness'?
Dekker-Stichting
93
Dougan on SL
Reliance on SL reduces the effectiveness of national remedies
94
What case said state liability is inherent?
Francovich
95
What is the commensurability requirement in Dekker?
The measure must be reasonable - it need not make EU law impossible before it is considered ineffective
96
What case suggested even a mere infringement may = sufficiently serious if little discretion?
Ex p Hedley Lomas
97
Dougan on NPR
Better NPA
98
Rewe v Hauptzollamt
No new remedies
99
Example of substantive EU right
ETD - Marshall
100
Article 4(3) TEU
Members need to take 'all effective measures to sanction conduct' affecting EU financial interests
101
Ceiling on damages is not always impermissible for 'adequate compensation'
Draehmpaehl v Urania
102
Who thought removing subjective fault from SL in Traghetti removed limiting factor of SL
Ludner
103
Dillenkoffer on intended to confer
Look at provisions of the measure in question
104
Krieger on SL requirements
Rare that the hurdle will ever be overcome
105
Re-open final decision if misunderstanding of EU
Kuhne and Heitz
106
What case introduced a commensurability requirement for national remedies
Marshall
107
What case required that in order to sue the Member over the person who actually caused harm, it must be virtually impossible to sue the latter?
Danfoss
108
Johnston v CC
confirmed that Von Colson goes wider than just sex discrimination
109
Van Shijndel
Per AG Jacobs, if effectiveness is always emphasised then could discriminate in favour of EU law
110
what case showed that there needs to be NO national remedy for EU to demand one?
Unibet
111
Fub v Stedt Halle
Disregard case law
112
Ex p BT general
Unclear
113
Who believed that the requirements for the 'sufficiently serious' leg of SL can be ascertained or helped by the Schoppenstedt test?
Beutler
114
Case requiring grave and manifest infringement for sufficiently serious SL
Factortame
115
Three cases trying to ensure legal certainty and effectiveness
Kuhne and Heitz; Lucchini; Pizzarotti
116
What case built on Fvrancovich?
Factortame
117
Edis v Ministero
Equivalence means no distinction between national and EU law, but not most favourable extended
118
Emmott v Minister for SW facts
Didn't allow a claim for payment under a Directive because time limit had expired by the time the Directive was properly implemented
119
If national evidentiary requirements make EU law difficult to be effective, use 'all procedures available' to ensure EJP
Boiron v URSSAF
120
why did Ludner criticise Traghetti?
Removing subjective fault removes the limiting criteria in sl
121
What case tries to explain Emmott v Minister for SW ?
Texaco A/S
122
What type of case was Ex p Eunice?
discriminatory denial of social security
123
What case showed SL being imposed because sufficiently serious in disregarding case law?
Fub v Stedt Halle
124
Texaco A/S
Confined Emmott v Minister for SW , largely due to misleading conduct in that case
125
Rechberger
State cannot use misconduct of 3rd as a defence to action for damages for breach of EU law
126
What two sources did the court draw on in Heylens v UNECTEF?
Articles 6 and 13 ECHR
127
In what case did the court reiterate that MI is not an insurmountable hurdle?
Traghetti v Italy
128
What case was on a Directive almost identical to that in Marshall?
Ex p Eunice Sutton
129
Case suggesting that SL is a residual remedy
Societe Comateb
130
What did the court say was/was not required for discriminatory denial of social security in Ex p Eunice Sutton?
Not for loss or damage, and interest is not essential
131
Example of ancillary procedural rights
Time limits (e.g. Steenhorst)
132
Article on principle of sincere cooperation
Article 4(3) TEU
133
Ferwerda
Grant of a remedy based on national law, subject to E & PP
134
What should the court have in mind for new approach to national remedies under Peterbroeck?
aim and function of national rule and importance/objective of EU right
135
What was the broader principle from Emmett?
No reliance on domestic law to limit a claim until Directive implemented
136
Ludner
Subjective fault
137
What two cases show a strong initial requirement of effectiveness of national remedies?
Dekker-Stichting and Emmott v Minister for SW
138
Evans
If compensation/restitution required, no exclusion of factors affecting the compensation value
139
steenhorst-neerings general
Retrospective disability benefit for unimplemented period
140
Case stating grant of a remedy for breach of EU based on national law, subject to twin principles?
Ferwerda
141
Dionysios Diamantis
National courts can refuse reliance on EU if claimant abusing rights
142
What case withdrew from Marshall?
Johnson II
143
Three cases on effect of P's conduct and equivalence
Dionysios Diamanis, Rechberger and Metalgesellschaft
144
What case abandoned the broader principle from Emmett?
NSteenhorst
145
Arnull
Unibet not erga omnes
146
What two principles did Von Colson add to the original twin principles
Adequacy and effectieness
147
What was the national rule in Steenhorst-Neerings?
Dutch law did not allow payment retrospectively of more than a year
148
Equivalence means no distinction between national and EU law, but not most favourable extended
Edis v Ministero
149
What case stated it is not for a Member to refuse to pay interest on a claim?
marshall
150
If similar domestic actions permit specific damages, allow for EU
Manfredi
151
what did San Giorgio allow?
Domestic law still primary role in determining conditions for grant of specific remedy required by EU law
152
Case suggesting SL can run separately from national claims
Stockholm Lindopark
153
What are the twin principles?
Equvalence and practical possibiity
154
Draehmpaehl v Urania judgment
Ceiling on damages is not always impermissible for 'adequate compensation'
155
No new remedies
Rewe v Hauptzollamt
156
What two remedies in Unibet were 100% compliant with EU law?
Damages and JR
157
Res judicata cannot prevent recovery of aid
Lucchini
158
How did the court distinguish Emmett in Steenhorst?
One-year period not a time limit, and not an absolute bar
159
Why did Dillenkoffer not think any difference between Factortame and Fvrancovich?
Sufficiently serious assumed in Factortame
160
Case on intended to confer
Dilenkoffer
161
Cabral and Chaves on SL
Excessive deference to Members in Kobler etc.
162
What case stated that requirements by EU on national remedies are fact-specific?
Eunice
163
Kobler general
Austrian failure to refer to CJEU
164
How many remedies were there available in Unibet at national level?
3
165
What case seemed to suggest effectiveness trumps NPR & UK law
Factortame
166
Case showing state response to breach of EU law by individuals still needs to be proportionate and not block fundamental freedoms
Sagulo
167
What test is similar to sufficiently serious test?
Schoppenstedt
168
Members need to take 'all effective measures to sanction conduct' affecting EU financial interests
Article 4(3) TEU
169
Emmott v Minister for SW judgment
Suspend time limits on bringing a claim pending proper implementation of a Directive
170
Stockholm Lindopark
Case suggesting SL can run separately from national claims
171
Draehmpaehl v Urania general
Ceiling
172
Right to effective judicial review
Heylens v UNECTEF
173
Wegener
Rechtsfrieden
174
Sagulo
state response to breach of EU law by individuals still needs to be proportionate and not block fundamental freedoms
175
Reliance on SL reduces the effectiveness of national remedies
Dougan on SL
176
What part of the Treaty did the court explicitly rely on in Factortame
Article 340 TFEU
177
What case showed Factortame SL applies to courts of last instance that fail to refer?
Kobler
178
Kuhne and Heitz
Re-open final decision if misunderstanding of EU
179
Von Colson judgment
Allowing a claim only for 'reliance loss' is ineffective under ETD
180
Article 340 TFEU
Duty of Members to make good any damage caused
181
What case refused to elaborate on 'sufficiently serious'?
Brasserie
182
What was the requirement in Kobler for SL?
Manifest infringement
183
Pregnant, ETD
Dekker-Stichting
184
What case was conjoined with Factortame?
Brasserie v Germany
185
Article 19 TFEU
duty of Members to offer remedies and EJP
186
Four cases showing a more cautious approach to national remedies
Steenhorst-Neerings, Johnson II, Ex p Eunice Sutton and Draehmpaehl v Urania
