The Principle Of State Liability Flashcards
Why do you use the principle of state liability?
Suing the state because of its failure to implement a piece of legislation where it was obliged to do so.
What has state liability developed from?
Judicial concept but developed from Art 4(3) TEU - ‘sincere cooperation’ and MSs required to take ‘any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties…’
Also developed from principle of institutional liability in Art 340 TFEU
What are the case facts of Francovich [1991]?
Directive provided that MSs will pay minimum amount of statutory pay to employees of company that goes into liquidation. Italy failed to implement directive. Could not sue former employer (as horizontal direct effect not possible with directive) so they sued the Italian State instead because they could not get a remedy. Idea that under Art 4(3) TEU failed to take particular measure (implementing directive) so had to take general measure (pay compensation to employees).
In Francovich, what where the two quotes that show the groundwork of state liability?
‘The principle of the state’s liability in damages was inherent in the scheme of the Treaty’
‘…it is a principle of Community law that the Member States are obliged to pay compensation for harm caused to individuals by breaches of Community law for which they can be held responsible’
When is the Francovich criteria for state liability applicable?
Where the MS has completely failed to implement a directive.
What is the Francovich criteria for state liability?
(1) the directive confers rights to individuals
(2) those rights were identifiable within the wording of the directive
(3) a causal link between the violation of the Treaty obligation and the loss suffered by the individual
What are the case facts of Brasserie du Pecheur and Factortame III?
BdP - about importing beer that did not comply with German beer purity laws prohibiting additives
Factortame - Nationality discrimination from Merchant Shipping Act
When does the Brasserie du Pecheur and Factortame III criteria for state liability apply?
Applies in all other circumstances to Francovich (other than total failure to implement directive) e.g. Where MS fails to adapt existing legislation or incorrect implementation of a directive. Can be Treaty, regulation or directive.
What are the Brasserie du Pecheur and Factortame III conditions for state liability?
(1) infringement of a rule of law intended to confer rights on individuals
(2) sufficiently serious breach
(3) causal link between breach and loss suffered
What factors did the court in Brasserie du Pecheur and Factortame III suggest should be considered to ascertain a ‘sufficiently serious breach’?
Breach must be “manifest and grave”
Para 56 factors:
- clarity and precision of rule breached
- measure of discretion left by that rule to national authorities
- whether infringement or damage was intentional or involuntary
- whether any error of law excusable or not
- possible contributory position of EC institutions
- adoption or retention of measures contrary to Community law
What are the key points of the Brasserie du Pecheur and Factortame III judgment?
- state liability extends to failure of a MS to adapt its national law to the requirement of EU law
- state liability applies in situations where law has direct effect. Direct effect is only a minimum guarantee
Which case established that although the UK had not properly implemented a directive, it did not amount to a sufficiently serious breach as the provision was ambiguous and the UK had been acting in good faith?
British Telecommunications [1996]
Which case demonstrated that a UK government ban on the export of live sheep to Spain based on animal welfare reasons, amounted to a sufficiently serious breach because it was not an area where MSs were given legislative discretion and it denied the free movement of goods?
Hedley Lomas [1996]
Which case confirmed that a failure to implement a directive will always be sufficiently serious under the Brasserie du Pecheur and Factortame III criteria?
Dillenkofer [1996]
In which case did the CJEU rule that a misinterpretation was not sufficiently serious breach as mistake had been made by other MSs and CJEU had not ruled on it?
Denkavit [1996]
