For STATE LIABILITY, what are the conditions and cases that should be mentioned?
- Established in Francovich, affirmed in Brasserie
- 3-limbed test
- – Is EU rule intended to confer a right?
- – Is breach sufficiently serious? (para 55/56)
- – Is there a direct causal link between breach and loss?
• All state organs can be liable; judiciary extremely unlikely to be found liable for failure to refer a case to EU courts
— Koebler
For STATE LIABILITY, explain how a sufficiently serious breach is judged.
- Clarity and precision of rule being breached
- Level of discretion allowed to the national/Community authorities by the rule
• Serious breach may be presumed if Member State has not bothered to implement the Directive at all
— Dillenkofer
• ‘Manifestly and gravely disregarded the limits of its discretion’
— Bergaderm
The clearer and more precise the rule, and the less discretion afforded, the more likely a sufficiently serious breach would be found
Hedley Lomas
Why is threshold for claiming SL against courts high?
Political complications between national courts and between national courts and CJEU
If against courts, what are 3 further conditions to be looked at?
Koebler:
1. Preciseness + Specificity of rule
- If breach was intentional
- If breach was excusable
If SL found and State failed to implement EU rule, what remedy available?
MS to ‘make good damage caused’ to individuals as result of failure
— Faccini Dori
Principles of Equivalence, Effectiveness, Procedural Autonomy
