Member States' Liability for EU Law Breaches

This assignment delves into the topic of member states' liability for breaches of European Union law. It involves analyzing various court decisions, such as Factortame and others, to understand the implications of these rulings on EU law enforcement. The assignment also touches upon the concept of state liability in relation to judicial error resulting in breaches of EU law. It requires a thorough examination of relevant case law, including Hedley Lomas, Regina v HM Treasury, and Traghetti del Mediterraneo, among others.

European Union
law

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
CONCLUSION ...............................................................................................................................5
REFERENCES................................................................................................................................5
BIBLIOGRAPHY ...........................................................................................................................7

INTRODUCTION
CJEU stands for Court of Justice of the European Union and its role is to ensure that law
is interpreted and applied in every member state of EU in same way along with assuring that all
the countries abide by the EU laws. It consists of two courts: court of Justice and general court.
In general terms CJEU is also referred as European court of Justice (EJC). All the members
states are given state liability under which every nations is responsible for implementation and
enforcement of EU law. The EJC has developed a general principle of state responsibility for
non-compliance with EU law. The present reports provide critical analysis of sufficient serious
breach by EU nations in context of state liability and lack of clarity.
MAIN BODY
State liability: the European community(EC) has placed the members with state liability
to private parties as a remedy for the violation of the law of the union. It has been determined by
the EC as general doctrine of them member state's liability in damages for violation of EU laws.
Violation of the Eu laws by different bodies of the state engages liability and the stats is held
responsible for the acts of public bodies or other delegated units to whom stats had given
responsibility 1. The court in a case stated that the failure to transpose a directive into national
law with in the stipulates time frame amount to sufficient serious breach and gives rise to state
liability. The EC have imposed a liability on to the member states as damages in case of violation
of any of the law of European union. The principle of state liability is established in Articel 4(03
of TEU. This is based on the basic principle of legal orders that national court must protect the
right of individuals which are conferred through EU law. The elements of the liability includes:
a breach of Eu law, attribute to the member states, causing damages to the individuals. With
establishment of all these, compensation can be claimed under legal action before the national
court.
Sufficient serious breach: It is one of the requirement under the union law for an
individual to obtain a reparation for violation of their legal rights conferred upon on them by EU
law. Both union and member state can be held liable for the damages caused an individual for the
damages suffered by him/her provisioned that the breach fall under sufficient serious category2.
The treaties of EU contains only general provisions relating to the liability for the damages
1 Neamt, Valentin Paul. "Member States’ liability for judicial error resulting in breaches of
European Union Law." Journal of legal studies 17.31 (2016): 64-76.
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under Article 340 of the TEFU. On the other hand Article 268 defines that the court of Justice of
EU have a contradiction over the disputes relate with damage claims for the cases of non
contractual liabilities of EU and banks.
Case laws and evolution of the concept of Sufficient serious breach and does it lack clarity:
Liability of the EU and Schöppenstedt test:
In the case of Aktien-Zuckerfabrik Schöppenstedt v Council of the European
Communities damage claims as to offset the prices change which was filed by the due to
changes in the sugar prices by union regulation3. The court stated that for instances where the
legislative action involves measures of economic policy, liability can be incurred only when
there is sufficient flagrant violation of superior rule of the law. The law must pertain to
protection of the individual and there must be casual link between the two.
This was the case where concept of sufficient serious violation came into existence for
stating the liability of the stated by individual for claiming the damages caused to them due to
non or inadequate compliance with the EU law which are inferred to the person by EU itself.
After this the fact was proved that sufficient serious breach requirement is very strict and can be
established only in exceptional circumstances.
Liability of member state for violation of Eu law
The liability of member state for the violation of laws of EU was first time introduce with
the case of Francovich4. For this court stated that breach by a member states is inherent in the
system of the treaty. In this case Italy failed to transpose a national legislation a directive by EU
that employees are given a guarantee on minimum protection in instances of employer's
insolvency. In this case court stated that there was a serious violation of the EU law and there
was a direct link between violation by state and damages which was suffered by the individual.
In this case lesser strict conditions were implied for determination of liability of member state.
Sufficiently serious breach within Brasserie conditions
However, in the case of Brasserie du Pêcheur SA v Bundesrepublik Deutschland5 the court
introduced the test of sufficient serious breach for all circumstances where the members enjoys
2 arson, James, and Katy Ferris. "The transposition and efficacy of EU rights. Indirect effect
and a coming of age of state liability?." Business Law Review 36.4 (2015): 158-168.
3 Aktien-Zuckerfabrik Schöppensted. 2018.
4 Andrea Francovich and Danila Bonifaci and others v Italian Republic. 2018.
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a position of discretion when enacting a measure that harmed an individual. This was case where
he liability of the member states was set in case of violation of the laws stated by EU by non and
inadequately compiling with them. In this case curt set three conditions that needs to be satisfied
for an individual in order to obtain reparation of the damages and one of them was sufficient
serious breach. The Court stressed that in determining conditions governing liability, account
should be taken of the principles inherent in the Union law - its full effectiveness and effective
judicial protection of individuals’ rights which stem from Union law.
Further more in the case of Dillenkofer and others v. Federal Republic of Germany
[1996], in which Germany failed to transpose a directive governing the travel packages and
holidays6. In this case the curt held that for an individual to obtain a redress only one set of
conditions need to be satisfied and one of them is sufficient serious breach. The court confirms
that where a member states transposed a descriptive by the EU on a later date which is prescribed
in the directive suffice to establish sufficient serious breach.
The court established a decisive test for determining the whether a breach by the
member state is sufficiently serious or not. Further in the case of Hedley Lomas it was made
significant that where a member sates is called upon to make a legislation mere infringements of
the EU law may suffices for existence of sufficient serious breach7.
Sufficiently serious breach and liability of national courts
The Court of Justice established liability of national courts for violations of Union law.
The Court actually continued where it started in Brasserie where it stated that under international
law States can be held liable irrespective of whether the violation that caused the damage is
attributable to legislature, the executive or the judiciary and that those same conditions governing
State liability should be applied also in Union law. Moreover, in the case of British
communication8 the court took the place of competent national court and established the breach
test which was within the limit of competence of the national court.
5 Brasserie du pêcheur v Bundesrepublik Deutschland and The Queen / Secretary of State
for Transport, ex parte Factortame and Others. 2018.
6 DILLENKOFER AND OTHERS V FEDERAL REPUBLIC OF GERMANY. 2018.
7 Hedley Lomas. 2018
8 REGINA V H M TREASURY, EX PARTE BRITISH TELECOMMUNICATIONS. 2018.
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In the case of Traghetti del Mediterroaneo SPA in Liquidation V Italian republic it
was stated be the court that manifest infringement is much stricter condition than a sufficient
serious breach9. On the contrary in the case of Köbler, the Court of Justice limits the liability of
Member States for judicial decisions for exceptional cases. Among such cases, the Court
emphasized on the situation where national court of last instance applied Union law contrary to
the interpretation already given by the Court of Justice10.
Sufficiently serious breach condition and fundamental rights violations
Fundamental rights are the cornerstone of the EU legal system and safeguarding these
principles have given a case for establishment of the laws in case of infringements of the basic
rights adhered to individual by EU law. With implication of fundamental rights of European
nation it was made clear by the court that theses rights are absolute in nature and are applicable
in all situation within the scope of Union law. These rights are prerogative and can not be
restricted by any means or law. In case theses rights of an individual are infringed it can be stated
that this is legible of to inure liability on the member state and the innocent person is liable to
get a damage claim. The courts have given decision that in case of violation of basic fundamental
rights damages must be given. This violation of rights is termed as sufficient serious breach.
CRITIQUE:
With passing time the first the concept of state liability was established in the case of
Francovich which clerified that member states of the Eu have certain duties and responsibilities
to comply and implements the EU laws in respective nations. But in the case of Aktien, the
requirement to contemplate the breach were made strict and with this the claims of damages got
very limited due to rigorous preciseness of the breach conditions. The facts of sufficient serious
breach was first held by the court in the case of Dillenkofer, where failure to transpose a
directive of EU law was also sufficed to establish the breach on the contrary in the case of
Hedley Lomas, it was held by the court the when making a legislation if a nation violate the
laws of union it the same will amount to sufficient breach. However, the approach of the court
was slightly different for the fundamental rights adhered to individuals under the EU law as no
condition was mention to constitute mere violation of any fundamental rights by ant member
stats becomes a breach and the person is eligible to get damages. Furthermore, in the case of
9 Traghetti del Mediterraneo. 2018.
10 Gerhard Köbler v Republik Österreich. 2018
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Traghetti manifest infringement is much more strict as compared to the sufficient serious breach.
However, in the case do Köbler, established the liability of the national court regarding
the violation of the laws of EU. In this case it was stated that only national must be held liable
under breach for the infringement. This can be clearly seen hat with cash case the perceptive and
condition of the sufficient serious breach got changes. For some instances the conditions are
precise and for certain case mere violation amounts to breach, moreover, for the fundamental
rights a simple infringement of the right suffice for sufficient breach. With this applicability of
the state liability gets hard hence making it more difficult for the individual to obtain the
damages. With the recent judgements the courts have identified two approaches on which claims
mights be base: breach of the directives and breach of the regulations. This has left two open
ended question to those who interpret it as with introduction of sufficient seriousness as an
element of domestic tort, how cloud the requirement of equivalence be justified. Another
question is that a person who proves breach and cause of breach has left with no remedy as
defendant can escape any sanction. With this it can be stated that the sufficient serious breach
lackes clarityto constitute the liability of members states of Eu leach clarity as with courts
decide on its discretion about the violation and grants remedy accordingly, there is no set format
on what constitute breach and to what extent.
CONCLUSION
To conclude the above critical analysis it can be stated that the concept of sufficient
serious breach for establishing state liability which was established for the first time state by
court in case of Francovich do. Sufficient serious breach do not have a precise and clear
framework for defining that what are the basis which can constitute the responsibility of states
for breach of EU law. This has been that with each case mentioned in the reports the courts have
decided on their own discretion about which violation or non compliance with the directives of
EU law can be comprised sufficient serious breach. The same has evolved with time and. Court
have finally created a complete system of rules which governs non contractual liability of the
members state with incorporation of sufficient serious breach as one of the condition to incur
liability for the member nations of EU. Furthermore, it can be articulated that there is essential
need to adjust the sufficient serious breach condition in order to ensure more substantive and
meaningful protection of individuals.
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REFERENCES
Books and Journals
Neamt, Valentin Paul. "Member States’ liability for judicial error resulting in breaches of
European Union Law." Journal of legal studies 17.31 (2016): 64-76.
Marson, James, and Katy Ferris. "The transposition and efficacy of EU rights. Indirect effect and
a coming of age of state liability?." Business Law Review 36.4 (2015): 158-168.
Online
DILLENKOFER AND OTHERS V FEDERAL REPUBLIC OF GERMANY. 2018. [Online].
Available through :<https://swarb.co.uk/dillenkofer-and-others-v-federal-republic-of-
germany-ecj-8-oct-1996/>.
Aktien-Zuckerfabrik Schöppensted. 2018. [Online]. Available through
:<http://curia.europa.eu/juris/showPdf.jsf;jsessionid=9ea7d2dc30db00e457826270404cb9
34acbc0bada5d1.e34KaxiLc3qMb40Rch0SaxuKchf0?
text=&docid=88106&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&
cid=200184>.
Andrea Francovich and Danila Bonifaci and others v Italian Republic. 2018. [Online]. Available
through :<https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX
%3A61990CJ0006>.
Brasserie du pêcheur v Bundesrepublik Deutschland and The Queen / Secretary of State for
Transport, ex parte Factortame and Others. 2018. [Online]. Available through
:<http://curia.europa.eu/juris/liste.jsf?language=en&num=C-46/93>.
Traghetti del Mediterraneo. 2018. [Online]. Available through
:<http://curia.europa.eu/juris/liste.jsf?language=en&num=C-173/03>.
Gerhard Köbler v Republik Österreich. 2018. [Online]. Available through :<https://eur-
lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A62001CJ0224>.
Hedley Lomas. 2018. [Online]. Available through :<https://europeanlawblog.eu/tag/hedley-
lomas/>.
REGINA V H M TREASURY, EX PARTE BRITISH TELECOMMUNICATIONS. 2018. [Online].
Available through :<https://swarb.co.uk/regina-v-h-m-treasury-ex-parte-british-
telecommunications-ecj-26-mar-1996/>.
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BIBLIOGRAPHY
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Serious.pdf
https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/state-
liability
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56b72e1fd210b8b615679c2d/1454845472083/GLJ_Vol_11_No_04_Zingales.pdf
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