882019
Description
Mind Map by Emilie Schou, updated more than 1 year ago
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Created by Emilie Schou
almost 10 years ago
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The principle of (state) liability for breach of EU law
- Origins of the principle
- Francovich: state liability inherent in
Treaty, indicating that an action for
compensation against state for
breach of EU law must be available +
required provision by national courts
of a damages remedy for breach of
EU measure which lacked DE
- 3 basic conditions established for
breaches involving a state's
non-implementation of a D
- Conferral upon individual
of specific rights
- Content of which must
be identifiable under D
- Causal link between
state's breach and
damage to individual
- Conferral upon individual
of specific rights
- 3 basic conditions established for
breaches involving a state's
non-implementation of a D
- Francovich: state liability inherent in
Treaty, indicating that an action for
compensation against state for
breach of EU law must be available +
required provision by national courts
of a damages remedy for breach of
EU measure which lacked DE
- Clarifying and
extending the principle
- Brasserie du Pêcheur and Factortame: Entitlement to
compensation applies to all breaches of EU law that
cause damage, not just non-implementation of
directives + state liability not limited to situations where
there is no direct effect + need to reformulate the test
to take into account this wider scope
- 3 conditions
- EU rule infringed must entail a
grant of rights to individuals
- The breach must be sufficiently serious
- Dillenkofer: total failure of
implementation of a directive is
automatically a sufficiently
serious breach
- Dillenkofer: total failure of
implementation of a directive is
automatically a sufficiently
serious breach
- Causation between breach of the
MS obligation and the damage
suffered by the individual
- EU rule infringed must entail a
grant of rights to individuals
- 3 conditions
- Köbler: principle of SL applies
even to violations of EU law by
national courts of final appeal.
- Traghetti del Mediterraneo: ECJ
condemned italian legislation which
sought substantially to restrict SL for
damage caused by last instance court
- Courage: ECJ emphasised fundamental nature of prohibition of
anti-competitive agreements in art 101, breach of which would
render any such agreement void. National law must provide an
action for damages against a private party for breach of the
Treaty competition law rules. BUT extent to which it extends
beyond competition to other Treaty provisions remains uncertain.
- Brasserie du Pêcheur and Factortame: Entitlement to
compensation applies to all breaches of EU law that
cause damage, not just non-implementation of
directives + state liability not limited to situations where
there is no direct effect + need to reformulate the test
to take into account this wider scope
- The conditions for SL
- Brasserie/Factortame: established
3 conditions (cf above) + existence
of prior ECJ ruling finding
infringement not necessary to
establish sufficiently serious breach
- Sufficient seriousness: would
not to take into account legal
disputes over fisheries policy,
fact that C had made its attitude
known in good time to UK,
assessment as to state of
certainty of EU law by interim
proceedings
- Causation of damage: for
national courts to decide
although later, clear
guidance given
- Standard of liability: did
not respond directly on
meaning of 'fault'
- Sufficient seriousness: would
not to take into account legal
disputes over fisheries policy,
fact that C had made its attitude
known in good time to UK,
assessment as to state of
certainty of EU law by interim
proceedings
- Köbler: state liability
in cases of judicial
breach => governed
by same conditions
and same standard of
liability as any other
state violation of EU
law
- although normally for national
courts to appyl law to facts of
case, ECJ had enough info to
give guidance on whether
conditions were fulfilled
- although normally for national
courts to appyl law to facts of
case, ECJ had enough info to
give guidance on whether
conditions were fulfilled
- Traghetti del Mediterraneo: sought to limit SL solely
to cases of intentional fault and serious misconduct
by national court. ECJ rejected this => under no
circumstances than that of a manifest infringement of
the applicable law as set out in Köbler may such
criteria impose stricter requirements
- British Telecom: ECJ agreed that UK had mis-implemented D
but did not amount to 'sufficiently serious breach' => provision
was not clear and precise to begin with, UK's interpretation
made in good faith, no guidance available from past ruling of
ECJ or C
- Denkavit: incorrect implementation
of taxation D where almost all MS
had adopted same interpretation oD
- Robins and Others v Secretary of State: where
EU leaves a lot of discretion to MS, SL will
depend on finding of manifest and grave disregard
for limits of that discretion
- Dillenkofer: failure to implement D => ECJ ruled that
non-transposition of D within prescribed time of itself
amounted to sufficiently serious breach
- Lomas: refusal of UK to grant export licences to
sheep from Spain => sufficiently serious breach
given lack of discretion left to states under D + lack
of proper justification
- Brasserie/Factortame: established
3 conditions (cf above) + existence
of prior ECJ ruling finding
infringement not necessary to
establish sufficiently serious breach
- SL and the national
remedial framework
- Action for compensation provided
within framework of domestic legal
system with varying procedural rules
- Effectiveness principle:
Brasserie/Factortame outcome would
make it difficult to obtain reparation.
'Reparation for loss or damages to
individuals as result of breach of
Community law must be commensurate
with loss or damage sustained'
- Bonifaci and Berto v IPNS: Compatibility of
national provisions restricting availability of
compensation for state's prior breach of EU
law. ECJ found that various provisions of
national legis limiting period from which wages
could be claimed to be too restrictive ><
effectiveness
- Bonifaci and Berto v IPNS: Compatibility of
national provisions restricting availability of
compensation for state's prior breach of EU
law. ECJ found that various provisions of
national legis limiting period from which wages
could be claimed to be too restrictive ><
effectiveness
- Equivalence principle
- Palmisani: left it to national court to
decide whether 1-year limit set by
Italian legis for a claim for
compensation for failure to
implement D was in compliance with
equivalence. ECJ still suggested
principle might have been violated.
- Transportes Urbanos: requirement of
exhaustion of domestic remedies
before bringing a claim in damages of
breach of EU law considered by ECJ to
violate equivalence principle since it
did not apply to claims in damages for
breach of domestic Constitution
- Palmisani: left it to national court to
decide whether 1-year limit set by
Italian legis for a claim for
compensation for failure to
implement D was in compliance with
equivalence. ECJ still suggested
principle might have been violated.
- Action for compensation provided
within framework of domestic legal
system with varying procedural rules
- SL as a residual remedy?
- What advantages to
choose EU-mandated
action for compensation
instead of another
existing national remedy
to enforce EU law?
- Société Comateb and Sutton: where national remedy is
unsatisfactory due to the existence of legitimate national
procedural restriction, action against the state preferable
where it does not violate this national rule
- Stockholm Lindöpark: ECJ rejected argument that
availability of a Francovich-style action for damages
should be precluded by fact that separate action under
national law could be based on DE of EU law.
- Wells: ECJ left it to national
court to decided what remedy
would be appropriate
- Prechal (judge on ECJ): SL for breach of EU law is 'a sort of residual
remedy... a second rank alternative' to the direct and indirect effect of EU
rights and their enforcement at national level. EU law may even require
litigants to rely first on direct and indirect effect of EC right before seeking
state compensation. SL as a kind of 'safety net' where other devices fail.
- Dougan: ECJ tends to use SL as a cure for inadequate
domestic remedies. Does ECJ's tendency to present SL
as panacea where national remedies fail have effect of
lowering effectiveness of national protection?
- What advantages to
choose EU-mandated
action for compensation
instead of another
existing national remedy
to enforce EU law?
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