European Union Law

 

State Liability under EU law

In the EU today, individuals have the right to claim compensation from the State as a result of the failure of that Member State to fulfil its obligation under the European Union law. This is following the doctrine of state liability established in Francovich and Bonifaci v Italy 1991 and reformulated in subsequent cases. Although the ruling was considered as a landmark, the attempts made by subsequent cases to cement the doctrine have rather been cosmetic. Since the establishment of Francovich principle, there has been little litigation and it is only a handful of cases that have been litigated successfully[1].

Even though the Francovich ruling and the subsequent cases laid the ground for member state liability, the conditions for proving state liability are difficult to satisfy. More so, national courts are reluctant to award damages against their State failure to fulfil its obligation under the EU law. In Francovich, the ECJ ruled that a claimant must establish three criteria to prove state liability: (i) the directive must be intended to grant a right to an individual, (ii), the content of the right must be identified by reference to the directive, and (iii) there must be a causal link between the failure to meet the obligation and the damage suffered[2]. In Brasserie du Pecheur the ECJ established another test- the breach must be sufficiently serious[3].

The conditions set by the court makes the threshold of establishing state liability very high. Besides establishing that there is a causal link between the State’s breach and the damage, the claimant must also show that the breach was sufficiently serious. Such factors to be considered to determine whether the breach was sufficiently serious include the degree of clarity and precision of the rule breached, the discretion left to the member state, whether the breach was intentional, whether it was excusable, and how the union could have contributed to the breach. All these conditions make the chances for an individual successfully litigating a claim against a Member State very minimal. In British Telecommunications for instance, the ECJ ruled that although the UK had altered a directive, the breach was not sufficiently serious[4].

 

 

Bibliography

Karen Davies, ‘Understanding EU Law’ (Routledge, 2013)

Tobias Lock, ‘Is Private Enforcement of EU Law Through State Liability a Myth? – An Assessment 20 Years after Francovich’ Common Market law Review [Online] < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2103490> Accessed March 22, 2014.

Cases

Brasserie du Pêcheur SA v Federal Republic of Germany (Cases C-46/93 and C-48/93) (1996)

R v HM Treasury, ex p British Telecommunications plc (Case C-392/93) (1996)



[1] Tobias Lock, ‘Is Private Enforcement of EU Law Through State Liability a Myth? – An Assessment 20 Years after Francovich’ Common Market law Review [Online] < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2103490> Accessed March 22, 2014.

[2] Karen Davies, ‘Understanding EU Law’ (Routledge, 2013) 81

[3] Brasserie du Pêcheur SA v Federal Republic of Germany (Cases C-46/93 and C-48/93) (1996)

[4] R v HM Treasury, ex p British Telecommunications plc (Case C-392/93) (1996)

 

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