The principle of state liability

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Introduction and legal basis

Inherent in the system of Treaty and covered in A4(3)TEU- 'appropriate measures to perform obligation.' 

C6/90 and C9/90 Francovich 1991- 'the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty... the MS are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.' The AG disagreed- not limited effect. 

Conditions for liability- Claims to be brought in the national courts- C46/93 Brasserie du Pecheur and Factortame 1996 (similar issues, use Brasserie first)- claimants would have to show- 

  • That the rule of Union law alleged to have been infringed was intended to confer rights on individuals
  • That the infringement was sufficiently serious, in the sense that the defendant had manifestly and gravely disregarded the limits on its discretion
  • and that there was a direct causal link between the infringement and the damage sustained by the injured parties.
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State liability

Need same remedies available. Necessary collery of direct effect- if as result of infringment it is an incident. 

Second condition- C5/94 The Queen v MAFF ex p Hedley Lomas- if the defendant State 'was not called upon to make any legislative choices and had only considerably reduced, or even no discretion, the mere infringement of Union law may be sufficient to establish the existence of a sufficiently serious breach.' 

C319/96 Brinkmann 1998- if fails to take any steps to directive laid down, it constitutes a serious breach of Community law. 

Courts of last resort- C224/01 Kobler v Austria 2003


  • The principle of re judicata (which prevents matters definitively resolved by the courts from being reported.) Stops repetition of litigation. 
  • The need to protect the independent of the judiciary. Shouldnt have to worry. Was a breach by a supreme court, which suffers loss, a base for claim in ECJ? Gov's didnt want.
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State liability

Relationship with direct effect- C91/92 Faccini Dori 1994

Legitimacy of the courts approach- Douglas Scott- 'the sources given by the Court for State liability in Francovich tend not to be derived from explicit treaty provisions, and for the legal purist are little more confusing than those offered in its early direct effect case law... once again it seemed that the Court had left itself open to the charge of judicial lawmaking and the undermining of the rule of law.' Lack of direct effect may mean state liability is only remedy available. 

Brasserie du Pecheur and Factortame- based on general principle of MS. Similar argument made by German gov- state liability is far reaching and wasnt in treaty. Vague foundations. 

A340 TFEU reflected 'the general principle familiar to the legal systems of the MS that an unlawful act or omission gives rise to an obligation to make good the damage caused' and the obligation of the public authorities 'to make good damage caused in the performance of their duties.. in many national legal systems the essentials of the legal rules governing State liability have been developed by the courts.' Treaty didnt deal expressly with breach by MS. For ECJ to give ruling on it. 

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State liability

Conclusion- C319/96 Brinkmann 1998- (big case and development)- 'The interpretation given by Danish authorities to the relevant definitions was not manifestly contrary to the wording of the Second directive or in particular to the aim pursued by it... the contested provisions were 'open to a number of perfectly tenable interpretations.' Not unreasonable.

State liability hasnt developed as much as worried. Strict approach to causation as well. 

Kobler- only for more serious cases and hasnt happened yet. 

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