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State Liability - Coggle Diagram
State Liability
What is it?
State liability applies to all harm caused by all authorities of a state, including the courts - Francovich
Member states are liable for harm caused by breaches of EU law for which they are responsible - Francovich
The duties imposed upon Member States by Article 4(3) TEU contribute to form the basis of the principle of state liability - Francovich, Brasserie du Pecheur/Factortame No 3
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It is an action in damages (a claim in tort law), brought against the government of a Member State
One of the examples of a more advanced judicial unification of a type of remedy is State liability for breaches of EU law. The principle made its first appearance in Francovich, where the Court stated that the principle of State liability for harm caused to individuals by breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty
Since then, the conditions for State liability have been slightly reformulated by the Court. The current test, as articulated in Brasserie du Pêcheur/Factortame
Conditions for liability - Brasserie du Pecheur, Factortame III
- The breach must be 'sufficiently serious' - Brasserie du Pecheur/Factortame No 3
‘Sufficiently serious’ means ‘manifest and grave’ (that is difficult to meet) - Brasserie du Pecheur/Factortame No 3
Factors to determine if something is 'manifest and grave' - see para. 56 of Brasserie du Pecheur/Factortame No 3; para. 55 of Köbler; para 51 of Ogieriakhi
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the fact that the position taken by a Community institution may have contributed towards the omission
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‘Sufficiently serious’ includes a failure to make a reference under Article 267 TFEU, where one is mandated by EU law (see below) Köbler
A breach is not ‘sufficiently serious’ if a Member State makes a good faith attempt to interpret a directive, even if this turns out to be wrong British Telecom, Denkavit
A MS failure to comply with a judgment of the CJEU may be a sufficiently serious breach (Brasserie du Pecheur/Factortame No 3)
a failure to allow goods compliant with the technical requirements in a EU directive to enter the market as a result of statements made by an official, which are attributable to the Member State, constitutes a sufficiently serious breach of Community law for the Member State to incur liability (AGM-COS.MET)
the fact that the national court seeks a preliminary ruling on the EU law at issue in the proceeding for state liability is not a decisive factor in determining that the breach of such EU law on the part of the relevant Member State was not sufficiently serious (Ogieriakhi)
- There must be a direct causal link between the breach of the obligation incumbant on the state and the harm - Francovich
- The rule of law infringed must have/have intended to confer rights on individuals; a wrong (an act or an omission violating EU law) of a legal provision which was intended to confer rights on individuals - Francovich, Brasserie du Pecheur/Factortame No 3
Enforcement
can only get damages under Francovich, not specific performance
EU law determines the core conditions of state liability the action for compensation is provided within the framework of domestic legal systems
Application
indirect effect may not 'rescue' individuals where no national implementing measure of a directive exists or where national legislation contradicts a directive. To address these situations, the CJEU has developed state liability