State Liability and National Procedural Autonomy Flashcards Preview

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Flashcards in State Liability and National Procedural Autonomy Deck (13)
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CJEU introduced the principle of state liability - MS can be liable IN DAMAGES for non-implementation of an EU directive. Francovich set out 3 conditions for SL claim:

1) Directive must confer rights
2) Rights must be identifiable under the directive
3) Causal link between the non-implementation (breach) by the MS and damage caused to the citizen

The state is liable in damages for the loss and damage caused to the citizen due to non-implementation - so in PQ, look at whether any money was spent due to the fact that the citizen was unable to enforce their rights under the directive (e.g. had to buy a train ticket/pay for nanny for their child).


Factortame (No 3)

CJEU held that where a MS violates Treaty provisions through domestic legislation, this can also give rise to a claim of state liability - so citizen can sue the MS for state liability if the MS introduces legislation contrary to any Treaty provisions - extends Francovich from non-implementation of directives.

However, in Factortame the CJEU did set out three slightly different requirements than in Francovich:
1) Directive must confer self-executing rights
2) Breach must be sufficiently serious so as to warrant holding the MS liable
3) There must be a direct causal link between the breach by the MS and the damage/loss suffered by the citizen - this is for the national courts to decide.

Breach is sufficiently serious to warrant SL where a) non-imposition of directive; b) breach of settled CJEU case law; c) breach of provision of EU law whose interpretation leaves NO ROOM FOR REASONABLE DOUBT.



CJEU explained that the tests in Francovich and Factortame for SL are actually the same - Francovich just did not include the second requirement in Factortame because non-implementation of a directive was evidently a sufficiently serious breach.

For PQ, apply Francovich to non-implementation of directives.

For other breaches of EU law, start with Francovich, then set out Factortame and explain Dillenkofer - finally apply FACTORTAME to the facts!


R v HM Treasury, ex p. BT

MS can still be liable in damages for SL where they did transpose the directive, but did so INCORRECTLY.

However, still apply all three stages of Factortame! UK was not liable under SL here because the directive was unclear, so there was NOT a sufficiently serious breach.


Kobler v Austria

Most radical expansion by the CJEU - state liability can also apply to judicial institutions where they fail to comply with EU obligations. Judicial institutions can ONLY be liable for SL where the court has manifestly infringed the relevant EU law - so where the court completely misinterprets and applies EU law in a way that is in manifest breach of the CJEU's jurisprudence.

So basically Kobler only applies where the national court makes a very bad interpretation of EU law, e.g. by going against settled CJEU case law = state can be liable in damages here



This establishes the principle of national procedural autonomy - national courts are entrusted with ensuring that citizens are able to effectively enforce their rights under EU law and claim appropriate remedies where there is a breach of EU law by a MS.

So the ways in which individuals can bring claims for breach of EU law/enforce their rights is generally left to each particular national legal system - they need to ensure effective rights and remedies, but how they do this is up to them.

BUT the CJEU were clear that under national procedural autonomy, claims brought for breach of EU law must not be less favourable than similar claims made under domestic law - principle of EQUIVALENCE


Peterbroeck v Belgium

In assessing whether or not a national procedural measure renders the application of EU law impossible or excessively difficult, the court must take into account the general purpose that the feature serves

This represents the more recent approach in which the CJEU is more deferential and considers things like proportionality, the role the domestic law/procedure serves etc.


Marshall v Southampton AHA (No.2)

Original approach of the CJEU as to whether or not the national procedures/rules ensured effective protection of rights under EU law was STRICT and INTERVENTIONIST - CJEU would itself assess whether or not the national procedures sufficiently protected rights under EU law.

So here, the CJEU held that a national UK rule which set a ceiling on damages for this type of claim had to be set aside because it did not ensure effectiveness of EU law



CJEU gradually took a more deferential and less strict approach to national procedural autonomy - less willing to intervene generally, and less likely to find that the national procedures did not sufficiently protect rights under EU law.

So Dutch national rule limiting retroactive disability payments to one year did NOT prevent C from acquiring an effective remedy under EU law, because it did not bar the claim absolutely and was seen as a legitimate domestic provision to not spend too much state money


Levez v TH Jennings

CJEU held that it is for national courts to ascertain whether procedural rules intended to secure rights derived from EU law are safeguarded under national law, AND comply with the principle of equivalence

So latest approach in addition to being deferential is that the CJEU generally allows domestic courts to make the assessments themselves



CJEU held that the principle of effectiveness was NOT intended to create new pan-EU remedies - national procedural autonomy is the general approach taken by the courts to ensure the effective protection of rights under EU law.


Factortame (No 1)

However, whilst generally the CJEU will not intervene and impose remedies itself (instead favouring procedural national autonomy).

CJEU held in Factortame I that the UK law which provided that interlocutory injunctions can never be awarded against the state was not acceptable - left it to HL to say when it is appropriate to apply an interlocutory injunction, but was clear that it could not have an absolute prohibition.

This effectively amounted to the CJEU indirectly imposing a remedy for breach of EU law because it held that interlocutory injunctions against the state HAD to be available, when they were not before under English law.



Unibet brought a claim in Sweden and argued that a Swedish law prohibiting advertising of gambling services breached EU law. CJEU affirmed its basic position that the Treaties never intended to create a new pan-EU remedy for breach of EU law.

However, the CJEU did say that if there was NO effective remedy or right of recourse for breach of EU law in a MS through their national rules and procedures, then the CJEU WOULD create a remedy ITSELF.

So if there is no means of C enforcing their rights under EU law/remedy for breach of EU law through national procedures/rules, whether directly or indirectly, then CJEU suggested it would create a remedy itself.

However, in this case it did NOT create a remedy for the breach of EU law because Unibet had an indirect mechanism by which effect was given to their rights under EU law - they could apply to the Swedish government for an exception to the advertising ban, so no need for CJEU to create a remedy itself.