Public EU Law - State Liability

Question	Answer
When is it difficult for individuals to invoke their rights based on Directives?	1) no national measure to interpret 2) national legislation contradicts the Directive.
Francovich Case	State Liability ''A State must be held liable for loss and damage caused to individuals as a result of breaches of Community Law for which the State can be held responsible. ''
Francovich Principle of Sincere Cooperation	A State can be held liable for breaches of EU law. This is an inherent obligation from the Treaties. Article 4(3) TEU, principle of sincere cooperation, provides that States shall refrain from taking any actions that could jeopardize the Union's objectives and shall take all necessary measures to assure that they achieve the objectives of the Union.
Francovich case Determination of State Liability	In this case the Court state that State liability will be determined based on the nature of the breach of Community Law giving rise to the loss and damage.
Conditions of State Liability (Francovich)	1) The result prescribed by a Directive should entail the grant of rights to individuals. 2) It should be possible to identify the content of those rights on the basis of the provisions of the Directive 3) The existence of a causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties.
Discretion of MSs when it comes to State Liability	Member States have the discretion to choose from national law the remedies to be given and the procedural rules for legal proceedings intended to fully safeguard the rights which individuals derive from Community Law.
Limits on State Liability	The substantive and procedural rules for conditions and reparation of loss and damage laid down by the national law must not be less favorable than those relating to similar domestic claims (principle of equivalence) and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation. (principle of effectiveness)
Principle of Effectiveness Von Colson	National rules which limit the right to compensation do not satisfy the requirements of an effective transposition of a Directive.
Principle of Effectiveness Factortame I	The ECJ held that a national court, in fact, has a duty to grant interim relief to safeguard alleged Community rights of individuals until the decision of the ECJ on the interpretation of Community law is available, and where a rule of national law would deny such relief, to set aside that rule.
Interim Relief	Interim relief is defined as a grant of something to give short-term help, or an order by the court before a full trial to preserve the current situation until the trial.
Brasserie Case Conditions reasoning	The conditions under which it may incur State liability must not be different than those under which the Community institutions incur liability for breaches of Community Law.
Brasserie Case Conditions for State Liability	1) The provision breaches shall grant rights to individuals 2) There must be a sufficiently serious breach 3) There must be a causal link between the breach of the obligation and the damage suffered by the injured parties.
2nd Condition ''Sufficiently serious breach''	Whether the State had manifestly and gravely disregarded the limits of its discretion. If there is little or not discretion at all the Court will automatically consider the breach sufficiently serious.
2nd Condition ''Sufficiently Serious Breach'' What may be taken into consideration by the Court?	1) Clarity and precision of the rule 2) Measure of Discretion 3) Whether the infringement and the damage caused was intentional or involuntary 4) Whether any error of law was excusable or inexcusable 5) The fact that the position taken by a Community institution may have contributed towards the omission etc.
Condition 3 ''Causal Link'' Determination	It is for the national courts to determine whether there is a causal link.
Francovich and Brasserie suggest three circumstances where liability will be easily found	1) A complete failure to transpose the Directive 2) Breach of an order to the Court of Justice 3) Breach of settled case law. - The Court will always look at the clarity of the provision. If there was no consensus as to the meaning of the provision then liability will not be found. Liability occurs when the obligations where obvious and leaves little room for Doubts.
Brasserie Case Findings	1)States were liable for acts of all public institutions. (ex parte Factortame III) 2) Conditions for liability must be the same of these under which Community institutions incur liability.
Kobler v. Austria	Liability for rulings by national courts. '' A Court against whose decisions there is no judicial remedy under national law is required to make reference to the Court of Justice''
Kobler v. Austria ''Res Judicata''	The Court stated that the principle of res judicata will not be impaired (criticized)
''Sufficiently Serious'' Other cases than Brasserie	l Case C-392/93 British Telecommunications plc l Cases C-283 & 291-2/94 Denkavit l Cases C-178-9 & 188-90/94 Dillenkofer l Case C-5/94 Hedley Lomas
When can State liability for an infringement of Community Law by a decision of a national court can incur?	Only in the exceptional case where the court has manifestly infringed the applicable law. The national court, in such case has to examine all factors used for ''sufficiently serious breach''
Traghetti Case	Challenged Kobler Case. Court said that the law in this case applies for all Courts. This case indicates that liability is to be determined on the basis of a competence-based rather than fault-based test.
Traghetti Case	Conclusion: National procedural law is to be applied in so far that it does not discriminate against Community claims.
Unibet Case	Discretion of the MSs to create a system of remedies and legal procedures in so far that are no less favorable than those applied in similar national proceedings and do not make it impossible or very difficult to exercise the rights conferred by Union Law.
Svenska staten (Swedish State) v Stockholm Lindöpark AB and Stockholm Lindöpark AB v Svenska staten (Swedish State).	Difference between direct effect and state liability.

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Public EU Law - State Liability

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