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Concept of State Liability

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Law of Uinstitutions1
Concept of State Liability_1
“In developing the concept of State liability, the Court of Justice has shown itself to be an‘activist court”European law is divided into primary and secondary legislation. Objectives of this law isto assure uniformity of legal provisions in their member states. For this aspect, treaties anddirectives are issued by the European Union1. Member countries are required to implement thislegislation in the stipulated time frame. EU legislation has equal enforceability to national law.By considering this aspect EU law confers right and obligation on the authorities in memberstates along with the individual and business entities 2. In situation, if there is breach in citedlegal provisions, then faulty party will be liable to pay damages. Described concept is developedthrough provision of state liability. In accordance with the provisions of state liability, an individual is entitled to attainingthe compensation from a member state in situation where they have to suffered from a loss as aconsequence of failure of that Member State in compliance of obligation stated by the EuropeanUnion. According to the study of Pangilinan(2011) Provision of state liability is beneficial forproviding indemnification in situation where there is neither applicability of direct effect nor ofindirect effect 3. For this aspect case of Francovich v Italy 4 can be considered. In this case,European Court of Justice had provided decision that member stated of EU will be held liable forthe payment of compensate to the injured party in situation of non-compliance of EU legislation.In the cited case, member states of EU were required to enact the provisions described inInsolvency Protection Directive 80/987 5 in their national law in order to give a minimum level1Summers, Clyde W. "Rights of Individual Workers: The Contract of Employment and the Rights ofIndividual Employees: Fair Representation and Employment at Will, The."Fordham L. Rev.52 (1983):1082.2Micklitz, Hans-W, and Bruno de Witte. 2012.The European Court Of Justice And The Autonomy Of TheMember States. Cambridge, U.K.: Intersentia.3Pangilinan, Christian.. "A ROLE FOR THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS INDEVELOPING A BINDING REGIONAL FRAMEWORK FOR REFUGEE PROTECTION.[2011]. AfricanYearbook Of International Law Online / Annuaire Africain De Droit International Online19 (1): 45-80.doi:10.1163/22116176-01900005.41991C-6/905(now 2008/94/EC)2
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insurance for employees who are not provided with the wages in situation where employers wentinsolvent. However, company failed to comply these directive and five years later they weredeclared insolvent. Furthermore, employees were not provided with the any compensationbecause there was no money as per the liquidator. As a consequence, employee brought claimagainst the Italian state and stated that they must pay damages in order to compensate for theoccurred losses as they failed in implementation of described directive by EU. Court of Justicehad provided decision in the favour of employees as Italian government had breached theirobligations.In addition to the above cited decision, Court of Justice had held that damages for suchbreaches should be available before the national courts. For this purpose, provision of stateliability was introduced. As per the view point of Steinberg (2005) this liability will providebenefit only in situation where claimant is able to proof that directive provided by EU conferredspecific rights on them and there is casual connection between the loss suffered and failure ofimplementation of directive by member states 6. This aspect is supported by the case of C-260/89Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas7.In relation to the breach of Eu act, how MP was made liable by CJ has been explained.The proceedings in the Court of justice are carried out by the Commission. They give themembers state about the opportunities to give reply against the issue or breach of Eu Act. Incase, if it does not terminates then there result in the failure of the termination of the MemberState. This will further moved or carried forwards with the violation of member state which isnot enforced by any of them.Judicial activism can be defined as judicial rulings that are based on the political andpersonal consideration instead of consideration of existing law. It is an antonym of judicialrestraint. On the basis of cited definition it can be said that provision of state liability regardingactivism of Court of justice is true. It is because, through this outset EEC had created their ownlegal system which is required to be integrated to the legal systems of Member States. Activism6Steinberg, Justice David M. DEVELOPING A UNIFIED FAMILY COURT IN ONTARIO. [2005].Family Court Review37 (4): 454-459. doi:10.1111/j.174-1617.1999.tb00545.x.7[1991] ECR I-02925.3
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