State Liability Part 2 - Lecture Notes PDF

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State Liability 1 Part 2: What is the State?

State Liability Part 2: What is the State? WHAT IS THE STATE? 1. Case C-98/14 Berlington & Others v Hungary (2015):  “The principle of Member State liability is applicable, inter alia, where the national legislature was responsible for the infringement.” 2. Case C-302/97 Konle v Austria (1999):  “In Member States with a federal structure [such as Austria and Germany], reparation for damage caused to individuals by national measures taken in breach of [EU] law need not necessarily be provided by the federal State.” 3. Case C-424/97 Haim (2000):  “It is for each Member State to ensure that individuals obtain reparation for loss and damage caused to them by non-compliance with [Union] law, whichever public authority is responsible for the breach and whichever public authority is in principle, under the law of the Member State concerned, responsible for making reparation.” 4. State Liability cases involving claims against “ public authorities”: i. Case C-568/08 Combinatie & Others v Province of Drenthe (2010) ii. Case C-429/09 Fuß v Stadt Halle (2010) iii. Cases C-501 – 506/12 Specht & Others v Land Berlin (2014) iv. Case C-420/11 Leth v Austria & Land Niederösterreich (2013) v. Barco de Vapor BV v Thanet DC [2014] EWHC 490, High Court 5. Case C-224/01 Köbler v Austria (2003):  “When the infringement stems from a decision of a national court adjudicating at last instance, the competent national court, taking into account the specific nature of the judicial function, must determine whether that court has manifestly infringed the applicable law. State liability can be incurred only in the exceptional case.” 6. Case C-173/03 Traghetti del Mediterraneo SpA v Italy (2006):  “State liability can be incurred only in the exceptional case where the national court adjudicating at last instance has manifestly infringed the applicable law.” 7. Cooper v Attorney-General [2010] EWCA Civ 464, Court of Appeal:  “In our judgment… the failure to make a reference… was excusable and did not amount to a sufficiently serious breach of [EU] law to engage Köbler liability.” 8. Bengoetxea, Text and Telos in the ECJ (2015) 11 ECL Rev 184:  “I would not exclude the possibility of the Köbler (or Traghetti) jurisprudence being applied to a stubborn national court of last instance abusively declaring acte clair in situations that should have been submitted for preliminary ruling.”

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State Liability 2 Part 2: What is the State? 9. Case C-160/14 Ferreira da Silva e Brito & Others v Portugal (2015):  “In circumstances such as those of the [present] case, which are characterised both by conflicting lines of case-law at national level and by the fact that [the provision in question] frequently gives rise to difficulties of interpretation in the various Member States, a national [court-of-last-resort] must comply with its obligation to make a reference to the Court.”

Vicarious Liability 

Case C-470/03 AGM v Finland (2007): “[EU] law does not preclude an individual other than a Member State from being held liable, in addition to the Member State itself, for damage caused to individuals by measures which that individual has taken in breach of [EU] law.”

Further Reading:  Harwood, Case note on Cooper (2010) 12 JPL 1543  Davis, Liability in Damages for a Breach of Community Law: Some Reflections on the Question of Who to Sue and the Concept of “the State” (2006) 31 EL Rev 69  Breuer, Case note on Köbler (2004) 29 EL Rev 243  Scott & Barber, State Liability under Francovich for Decisions of National Courts (2004) 120 LQR 403

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