MS liability 1

Question 1

ms liability rely on

Answer 1

Ms liability for breach of eu law- topic 8.2 so belongs to topic no.2 – NATIONAL PROCEDURAL AUTONOMY

Question 2

learning obj for ms liability?

Answer 2

1. Understand the development of the doctrine of Member State liability
2. Understand and apply the test for Member State liability
3. Critically assess the scope of application of the doctrine of Member State liability

Question 3

ms liability for breach of eu law def?

Answer 3

action by an individual against a MS when the MS has failed to comply with EU law and that has resulted in damage or loss to the individual
- do not need in exam

Question 4

where is this action brought in?

Answer 4

This action is brought in national courts against the MS (e.g. against the UK)

Answer 5

For essay questions on national procedural autonomy: think about MS liability as well

Question 6

origin of doctrine?

Answer 6

Origin of the doctrine of MS liability for breach of EU law: -

• Case C-6/90, Francovich
• No textual base in the Treaty
• Decided in „period of judicial intervention“

Question 7

Part II: An example-?

Answer 7

EU law to the rescue: The story of Aston law student A

• look at example

Question 8

Consequence of No horizontal direct effect of directives

Answer 8

Directive remains ineffective without proper implementation in MS. Incompatible national law applies.

Question 9

Consequence of No horizontal direct effect of directives

- BUT

Answer 9

-CJEU has developed “strategies” to circumvent the lack of horizontal direct effect of directives [Part VI]

-MS liability for breach of EU law
[TP2, Topic 8]

Question 10

Part II: An example- what about ms liability being different?

Answer 10

Member State liability is different from direct effect!

Question 11

Part II: An example- what is direct effect?

Answer 11

-Direct effect: you seek to enforce your right (e.g. right to not be discriminated against, right to holiday pay)

Question 12

Part II: An example- what is state liability?

Answer 12

• State liability: you seek damages from the state, instead of your right, because your right is breached
• State liability: you seek damages from the state, instead of your right, because your right is breached

Question 13

Part II: An example- in theory what?

Answer 13

In theory at tleast can be quite powerful is it does not – it also works if eu la wis directly effective.

Question 14

Part II: An example- ms liability provides what?

Answer 14

MS liability provides an alternative if EU law is not directly effective
MS liability also applies if EU law is directly effective [controversial]

Question 15

Part II: An example- thats why it is quite interesting?

Answer 15

that’s wnhy it is quite interesting for applicants hwow ant tor ely ona directive. It also applies if eu la wis directly effective. Controversial. = FURTHER READING.

Question 16

Part II: An example- EU law to the rescue: The story of Aston last student A- part 2?

Answer 16

Means – get to what ms liability is – she cannot rely on the right against uber- shes filled with anger but she had 1 final thought

• Filled with anger, A has one final thought. If English law does not give her the right to holiday pay and sick pay even though EU law does, that means that the UK government did not correctly implement the EU directives regulating workers’ rights into English law.
• her euk did not correctly implement directives,

Question 17

Part II: An example- EU law to the rescue: The story of Aston last student A - point 5?

Answer 17

If A is right, the UK government has breached its obligation to correctly implement directives into national law (cf. art. 288 TFEU) = a Member State (here the UK) breached EU law

– that sit eh crucial breach of eu law by member state – art 288 – to IMPLEMENT DIRECTIVES – ms
So clear we had A BREACH HERE- so a decides to sue uk and bring action- se ants to rely bms liability for breacj of eu law.

Question 18

Part II: An example- EU law to the rescue: The story of Aston last student A - point 6?

Answer 18

A decides to sue the UK and bring an action in English courts

-DEVELOPMENT OF WHY THAT CAN HELP HER

Question 19

Part III: Origin of the doctrine and its conditionswhat were looking at now?

Answer 19

LOOK AT ORGIN OF DOC AND COND

Question 20

Part III: Origin of the doctrine and its conditionsBut does this action exist? Can you sue your own state in damages for breach of EU law?

Answer 20

No textual base in the Treaty

-No textual base for this also ms this action did not exist until case francovich. THIS SCENATIO HERE OBVS NOT SUPRISING FOR US – supremacy isn’t in treaty neiher this- court has invented doctrines to increase effectiveness of eu law and increase protection of infividual rights.

Question 21

Part III: Origin of the doctrine and its conditionsCase C-6/90, Francovich?

Answer 21

FAILED TO IMPL- BREACH OF EU LAW – read as written the facts. Applicants (mr franc)

Question 22

Part III: Origin of the doctrine and its conditionsCase C-6/90, Francovich? facts?

Answer 22

Italy failed to implement an EU directive protecting employees in the event of their employer‘s insolvency. The Directive guaranteed payment of wages owed by employers in the event of insolvency. The applicants argued that Italy (the state) was liable to pay them the sums owed by their (insolvent) employer. Had Italy implemented the directive correctly, they would have been entitled to payment of wages under Italian law.

Question 23

Part III: Origin of the doctrine and its conditions- Direct effect? in relation to this case?

Answer 23

Direct effect? – would that help mr fran- thi is where these facts 2 sort- what happened was according to directive, the guaranteed payment of wages, used to fund, probl was, wasn’t clear according to directive who has to ay into that fund, how that fudn is admisntered, court said direct e ffeg doesn’t work bc his right is not specif precise. No direct effect.

Question 24

Part III: Origin of the doctrine and its conditions- Indirect effect? in relation to this case?

Answer 24

Indirect effect? – he faced sit under which eh would have got nithing even though very clear italt infringed his right an eu law .

Question 25

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich

Answer 25

‘The full effectiveness of [EU] rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of [EU] law for which a Member State can be held responsible’ [33]

Question 26

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich 2?

Answer 26

‘It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of [EU] law for which the State can be held responsible is inherent in the system of the Treaty.’ [35]

Question 27

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich - reasoning for this where $?>

Answer 27

This reasoning is assessed in EU handout, pp. 86-87

Question 28

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich - bit of reasoning in depth?

Answer 28

Reasonign : it becomes very clear wwhy franc may full into judicial implementation – remebr box on slide for last week – ANTOAL PROCEDURAL ECONOMY/EFFECTIVENESS- period of judicial restrainr, very end realise its not blaanced, but in early 90’s looked at factortame 1 and how did the court reason, didn’t reason with priacival impossibility, not excessively diff- no use words full eccetivens,s, putel off judicial intervention.- and we see same reasoning in frnac at about the same time, the same judges. So franco vich. Falls into period of judicial int.

Question 29

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich - so state must be?

Answer 29

SO STATE MUST BE LIABLE FOR LOSS AND DAMGE COSTS.

Question 30

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich - - take home message?

Answer 30

1. CJEU established the principle of MS liability for breach of EU law 2. EU law remedy

Question 31

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich - - take home message? 2 in depth?

Answer 31

2. Eu law rem – jduical restraint (no eu law rem) changed early 90’s franc- clear change- created by eu law. – breach occurred was non implementation fof directive, case law estended this,- ……rise ms liability

Question 32

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich - - take home message - what about breach of law?

Answer 32

Breach of EU law in Francovich = non-implementation of directive Extended in later case law: any violation of EU law by a MS can give rise to MS liability claim

Question 33

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich - - take home message - core eu conditions?

Answer 33

Core EU conditions for state liability claims in Francovich Check with textbook; these conditions were consolidated in Joined cases C-46 & 48/93, Factortame III/Brasserie du Pecheur

Question 34

Part III: Origin of the doctrine and its conditions- held Case C-6/90, Francovich - - take home message- what about this year?

Answer 34

This year= orign of doctrine, now look at conditions, also in franc, court laid down, again this si something itn- why because ein riva only 10yrws warlier, there are no eu law governing .. , all national stuff. Court established eu conditons. , actually laid down inf rnaac, but later qualiefied in fact.