Term
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Definition
| allows an individual to recover compensation from a Member State where he or she has incurred loss as a result of the failure of that Member State to fulfil its obligations under EU law |
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Term
| Why is state liability useful? |
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Definition
It may provide a remedy to a person in cicrcumstances where neither direct effect nor indirect effect is applicable
NOTE: can still be used where indirect&direct effect are also available |
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Term
| What is the leading case on state liability? |
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Definition
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Term
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Definition
Non-implemented directive - no existing national law - vertical claim against the italian state for failing to produce a fund to help employees in insolvent companies
CJ held that Italian court could be held liable for having failed to implement the directive
Derived authority from article 4(3)TOTEU which requires MSs to fulfil obligations AND to remedy consequences of failure to fultil
CJ identified three conditions which must be met in order for a claim for state liability to take effect |
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Term
| Three stage test set out in Francovich |
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Definition
1) The result prescribed by the 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) there must be the existence of a causal link between the breach of the state's obligation and the loss and damage suffered by the injured parties |
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Term
| What piece of EU legislation does state liability derive its authority from? |
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Definition
| Article 4(3) TOTEU - (same as for indirect effect) - all member states must fultil their obligations, and provide a remedy in situations where their failure to meet obligations cause loss to an individual |
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Term
| Brasserie du Pecheur & Factortame |
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Definition
Joined cases, arose as a consequence of breached EU law (Treaty provisions)
Set out a seperate-ish test for state liability
Relied on Art 4(3)TOTEU AND ART 340 TFEU
CJ ruled that breach need not be total (e.g. total failure to implement), but that the breach would have to be SUFFICIENTLY SERIOUS.
Once again = three stage test for establishing state liability |
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Term
| Brasserie du Pecher - three stage test for establishing state liability |
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Definition
1) The rule of law infringed must be intended to confer rights on individuals
2) the breach must be sufficiently serious
3) there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties |
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Term
| Why do we have the two different tests for state liability? (Francovich & Brasserie?) |
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Definition
Francovich = the first test, refers explicitly to directives... whereas Brasserie is ver open.
Furthermore, Francovich appears to only cover for total breaches, whereas Brasserie covers for sufficiently serious breaches...
HOWEVER, note: Dillenkofer |
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Term
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Definition
Case in which it was suggested that the Brasserie test could be used to cover all situations giving rise to state liability (e.g. it could render Francovich redundant).
HOWEVER - THIS IS YET TO BE CONFIRMED BY THE CJ!!! |
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Term
In the case of Brasserie Du Pecher, the CJ suggested
a) a specific question
b) a list of factors...
all of which which could be taken in to account in determining whether a breach was sufficiently serious... |
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Definition
QUESTION = whether the Member State had 'manifestly and gravely disregarded the limits of its discretion?
FACTORS =
a) the clarity and precision of the rule breached
b) the measure of discretion left to the member state by the rule
c) whether the breach was intentional
d) whether the breach was excusable
e) the extent o which a position taken by a Union institution may have contributed to the breach
f) the extent to which the member state had adopted or retained national measures contrary to EU law |
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Term
REMINDER!!! In the case of Brasserie du Pecher, the CJ produced a list of factors which could be considered when deciding whether a breach of EU law amounted to a sufficiently serious breach...
Name them... |
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Definition
a) the clarity and precision of the rule breached
b) the measure of discretion left to the member state by the rule
c) whether the breach was intentional
d) whether the breach was excusable
e) the extent o which a position taken by a Union institution may have contributed to the breach
f) the extent to which the member state had adopted or retained national measures contrary to EU law |
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Term
| R v HM Treasury, ex p British Telecommunications plc [1996] |
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Definition
The UK was held not to be liable for damages under state liability. Desipite the CJ ruling that the UK had mis-implemented a directive... Held for a number of reasons:
a) the lack of precision in the relevant provision of the directive
b) the UK's interpretation of what was required was made in good faith
c) the same interpretation of the provision as made by the UK had also been made by other member states
d) That interpretation was not 'manifestly contrary to the wording of the directive or the objective pursued by it
e) there had been no guidance available through wither case law or the CJ or from the Commission, which had not raised the matter with the UK when it had implemented the Directive |
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Term
| What were the reasons why the UK was held not to be liable for damages after mis-implementing a directive in the case of BRITISH TELECOM |
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Definition
a) the lack of precision in the relevant provision of the directive
b) the UK's interpretation of what was required was made in good faith
c) the same interpretation of the provision as made by the UK had also been made by other member states
d) That interpretation was not 'manifestly contrary to the wording of the directive or the objective pursued by it
e) there had been no guidance available through wither case law or the CJ or from the Commission, which had not raised the matter with the UK when it had implemented the Directive |
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Term
| R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd |
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Definition
The CJ took a much stricter approach than in BRITISH TELECOMS
UK refused to grant a licence to allow live animals to be exported to Spain
UK accepted that it had breached EU law, but sought to justify it on grounds of animal welfare (a recognised derogation under EU law in this area)
CJ Held that in the absence of of evidence supporting its case, the UK's actions could not be justified and the breach was sufficiently serious for the UK to be liable for the loss and damage suffwere by Hedley Lomas |
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Term
| When trying to establish state liability in a case where a member state has totally failed to implement the EU law and no discretion is left to them, which state liability test do you use? |
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Definition
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Term
| In cases where the the state fails to give full effect to EU law, despite some measures to do so, which test for state-liability do you use? |
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Definition
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Term
| Francovich test w.r.t discretion = |
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Definition
| Used when there is no discretion left |
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Term
| Brasserie du pecher test w.r.t discretion = |
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Definition
| applies in circumstances where member states have been left a degree of discretion under the relevant provision of EU law |
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Term
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Definition
CJ ruled that failure to implement a directive after the deadline had passed was itself a sufficiently serious breach to establish state liability...
THEREFORE, = suggestion that Brasserie test will replace Francovich for total-breach cases, HOWEVER, THIS IS YET TO BE CONFIRMED BY THE CJ |
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Term
| In the UK, how long does an individual have to bring a state liability claim? |
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Definition
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Term
| Spencer v SS for Work and pensions: Morris v SS for Transport |
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Definition
| In the UK, an individual has 6 years to bring a claim for state liability |
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Term
| Despite there being direct effect, indirect effect and state liability, is it still possible for an individual to be unable to rely on any of them? |
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Definition
| YES - it is possible that they could fall through the 'cracks' |
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Term
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Definition
| An erroneous interpretation of EU law by a court of last instance can give rise to state liability |
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