State Liability

Question 1

direct effect

Answer 1

provisions of EU law are capable of giving rise to directly enforceable rights in nationals coirts where
1. the provision is sufficiently clear and presise
2. the provision is unconditional
3. the provision leaves no room for discretion in implementaion

this along with the control of national autonomy helps reinforce effectiveness of EU law
alongside the role of the commission in its use of the enforcement procedure

Question 2

the doctrine of state liability

Answer 2

for failing to implement EU law, originally for implementing directives

Question 3

directives

Answer 3

directives- subject to a particular set of rules regarding direct effect, and is binding on states but not in its entirety (binding as to the objectives to be achieved)
- explemplifies decentralization as the directive just binds for the objective but MS look into details on how to implement

benefits of directives-
1. used as an interpretaive aid
2. can give rise to enforceable rights against the state
3. exclusionary effect- set asides national law that conflicts with it
(no horizontal effect)

Question 4

how does the doctrine of state liability ensure the effectivenss of directives?

Answer 4

doctrine adds to the pressure that can be placed on a state to implement a directive
also provides an avenue for individuals to claim damages from the state where loss results from failed implementation
(however certain conditions)

Question 5

origin of the doctrine

Answer 5

francovich [1991]- doctrine gave employees claims for unpaid wages at insolvency, italian government did not implement and had conmmission enforcement action, employee seeking unpaid wages from directive

2 questions to consider-
1. did the directive create an enforeable right against the state (consider basic direct effect threshold)
2. whether a claim for compensation was available against the state for loss suffered by the failure to implement

in this case
1. did meet direct effect threshold however did not set out clear party to enforce the right against so did not provide an enforceable right against the state
2. without legal redress this will undermine the effectiveness of EU law

conclusion-
- the principle that states are liable for failure to implement that cases loss is inherent in the treaties
-also said to derive from art 4(3) TEU that places an obligation on MS to take all appropriate measures to fulfill obligation under EU law
above ensures question 2 is satisfied and ensures effectiveness

Question 6

francovich 3 conditions for failure to implement directives (para 40)

Answer 6

1. directive must grant rights to indiviudals
2. the content of the rights must be identifiable on the bases of provisions of the directive
3. there exists a causal link between the states breach of its obligation and any loss to the individual

Question 7

development of principle for general law

Answer 7

brasserie du pecheur and r v factortame [1996]- claims for compensation against states for alleged breach of treaty provisions relating to the single market with loss to individuals
- said state liability was general in nature and not just for directives
- test for determining state liability in the general nature:
1. the rule of law infringed must have been intended to confer individual rights
2. there must have been sufficiently serious breach (for discretionary power= manifest and grave disregard of the limits of its discretion)
3. must be a causal link between the states breach and the damage caused

Question 8

arguements regarding this

Answer 8

for- CJEU and the union taking action to give rights to individuals to ensure effectiveness
against- the CJEU overstepping its limits

Question 9

uniformity and effectiveness

Answer 9

For-
-state liability
-in general- established in Brasseries

-for directives- established in francovich, italian government had not implemented a directive
-adds to the pressure for states to implement directives
- directives used as in interpretative aid so national law is interpreted in conformity with directives
-used to create enforceable rights against the state
- provides an abenue for compensation and remedy
- so promotes consistency
-inherent in the treaties and derived from article 4(3) TEU- ensuring protection of rights and ensures a remedy is provided
-craig and burca as the the principle is inherent in the treaty “an action for compensation against the state for breach of EU law must be available”
-ibid “this represented an important additional move towards enhavincing the effectievness of unimplemented directives”
-“francovich gave only minimal guidance for the future” by establishing 3 basic conditions- craig and burca
- however the expansion and clarification of this came from brasseries-craig and burca

Against