EU LAW - lecture 4 23 PDF

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EU LAW - LECTURE 4 Definition of State Liability • - Stems from direct effect and supremacy The concept of direct effect which is that EU law because the member states have signed up to the treaties, EU is now [art of their national eutomy, it creates rights for their individuals. EU law should always prevail against EU and national law. Eu law has direct effect it must prevail and this how EU law is enforced What happens of it chooses to ignore direct effect or EU law, how do we make sure it sticks to the regulations? If a member sate reaches their obligations to enforce EU law and that member state fails to reach its obligations under EU. You’re breaching under the EU law if the member states break the role. State liability is a remedy available to the individuals, the EU citizens when a member state hears to its obligations under EU law, can claim the remedy of state liability, saying you are going to sue the state for their omission. Member states will pay out to the person who is suing who has been affected by the breach. It is not the EU central bank that pays the central bank when there is an error it is the members states fault it is the member state that has to compensate. Why exactly would state be liable? The reason why it was created is because it is the best and most effective way to ensure it is effective. That is going to discourage people from speeding in the same way we have the state liability to punish someone for their wrongs to pay their fine. State liability The court created the concept of direct effect and supremacy The treaty never intended to create a new remedy, it was actually made by the court =what the court has emphasised it never intended to create a new remedy instead they wanted to say that those concepts of liability has always existed in the treaties already and we wanted to always interpret. No where in the treaty does it say we need to create a new remedy If you want to say there has been a breach of obligation there have been so many incidents you can have non-enforcement laws under treaty, directive OR regulation Where has this concept of strict liability come from? What happened in Frangov Is the source of state liability, we had some Italians who were seeking a=compensation against their own member state against Italy, They were arguing that there was failure to implement a directive? They said we demand compensation because they didn’t implement directive efficiently. They concluded that the member state is at fault, they were not able to claim rights and said this was not ok and fortunately could claim rights. They said if we did not give s remedy to these individuals then the full effectiveness of community rule would be impaired and the projection of the rights which they grant would be weakened. If we didn’t have state liability, then EU law would be that relevant and there needed something to be relied upon. If you are claiming state liability you are claiming Franch damages. IT IS NOT A NEW REMEDY. Reasons for having state liability

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Helped with enforcement of unimplemented Directives They saw that all of the directives were being wrongly implemented and decided to fine them, it was all about enforcement. Wanted to ensure that EU law could be enforced, so that individuals would have their rights. Inherent in the Treaty anyway – not a new remedy It is always the member states having to pay out the individuals Adhering to principle of sincere cooperation and procedural autonomy (C-33/76 Rewe [1976]) – In the treaty itself requires the member states to oblige to EU law Applying the principle of cooperation laid down in Article [4] of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. – it is not the Eu’s responsible to ensure that the law is correct but is national Criteria for claiming State Liability State liability forcing individuals to pay money for a wring that they committed is not attractive if they are the member states. The eu was not stepping up they decided when fran damages came about they were going to make it very brief and narrow it down they limited it to small situations and those were if you were wronged in the context of directives Later clarified and expanded in Brasserie du Pecheur State liability was then available not only for Directives, but now any breach of EU law, - this will upset member states – a political issue When applying situation in state liability, do all violation of EU law is it always the states responsibility? Whos to be punished They decided that the state liability and the directives of it, will apply across the irrespective of the board to whichever organ was responsible. There was still some rules to balance out, so in order to claim state liability must be violations of the EU law from national courts of the final appeal (kobler) any lower level of court cannot claim state liability. Violation if the EU law must be at the highest level. What they are trying to say is It is a last resort remedy. No ability to appeal ruling that infringes rights in EU law

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c-46/93 AND c-48/93 Brasserie du Pecheur [1996] BDP - Joint case for financial compensation sought for losses that were sustained from the Factortame case line of reasoning Also financial compensation sought from German state for breaching free movement of goods Argued that compensation should not be available for directly effective EU law, because national law should have dealt with it Argument not accepted A specific right must be conferred upon an individual The breach must be sufficiently serious A causal link between the breach by the State and the damage to the individual must exist

Grant of right to individuals • • • •

Previously only allowed unimplemented Directives Now all breaches of EU law can claim state liability Links with the principle of direct effect What right is being granted also determines the sufficiently serious breach itself Sufficiently serious breach

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An extremely unclear condition Tautological definition of what is considered to be “sufficiently serious” Needs to be an obvious breach Very high standard of what is considered to be sufficiently serious Issues with “sufficiently serious”

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Directive imprecisely worded leading to incorrect implementation is not a matter under State liability (ex p BT) If a directive is imprecisely worded and this leads to a member state. Misinterpreting this and failing to implement the directive correctly it is not the member states fault. Under Ex p BT the strict liability states, it is not the fault of the member of states that the directive is rubbish Directive incorrectly implemented was not sufficiently serious if other Member States also implemented this way (Denkavit) If one member states implements the directive and another member state implements it the same way, they are excused because another member state has already implemented and it has been copied they are off the hook The less discretion afforded to Member States, the more likely it is to be a sufficiently serious breach (Hedley Lomas) Causal link There must be a link between the damage caused by the breach and loss suffered and the issue being claimed Must link to the Member State, whatever organ of the State National courts are usually responsible for applying EU law to the facts of the case (Kobler)

EFFECT ON STATE LIABILITY ON NATIONAL COURTS State liability comes from the EU, it does not come from the member state but if an EU court finds a member state liable it is left up to the national court it is uoto them to determine how much is sufficient towards damages • Whilst state liability is an EU concept, if a Member State is found liable for a breach then it is up to their own national law on damages • CJEU just determines if there has been a case warranting financial compensation • Provides procedural autonomy to Member States – if the member state has financial damages • Still does not avoid the fact that Member States sometimes think it is an intrusion into their autonomy

Criticisms of state liability • There is no harmonised set of EU remedies and state liability does nothing to help this • It is a difficult balance between respecting Member States’ autonomy and enforcement of EU law – we need to try and encourage enforcement • State liability claims usually referred by States who comply with EU law

Criticisms of state liability • State liability as a remedy for national courts of last appeal undermines res judicata (Kobler) • Independence of judiciary undermined by offering another remedy through the EU • Domestic courts involved with determining State liability may get complicated • There are few cases that actually succeed in terms of state liability – a political move? Summarising state liability C-432/05 Unibet [2007] 42…in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection… 43 In that regard, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)…...