Member State Liability for Damage Caused to Individuals by a Breach of Eu Law for Which

Chapter 12

MEMBER STATE LIABILITY FOR DAMAGE CAUSED TO INDIVIDUALS BY A BREACH OF EU LAW FOR WHICH IT IS RESPONSIBLE

1. What principle was established in Joined Cases C-6 & 9/90 Francovich & Boniface?

a. The principle for State liability.

b. The principle of direct effect.

c. The principle of indirect effect.

a. This is the correct answer. The principle allows an individual to claim damages against the State for breaches of EU law for which that State is responsible.

b. This is a wrong answer. The possibility of direct effect did not arise in these cases because the employer was not the State or an emanation of the State.

c. This is a wrong answer. There was no possibility of obtaining a remedy by using indirect effect because the employer was insolvent. The only possible successful claim for damages was against the State.

2. Which of the following conditions must be satisfied by a claimant who alleges that he has suffered loss as a result of a Member State’s breach of EU law?

a. He must be a national of that Member State

b. The breach must be sufficiently serious to merit an award of damages

c. The damage suffered Exceed €100,000.00

a. This is a wrong answer. Any individual, irrespective of her/his nationality, who has suffered loss as a result of a Member State’s infringement of EU law

may bring proceedings against that Member State.

b. This is the correct answer. A national court when determining the existence of a sufficiently serious breach of EU law must take account of all factors relevant to the case. These factors are:

·  the clarity and precision of the provision of EU law allegedly breached by the Member State;

·  the measure of discretion enjoyed by that Member State;

·  whether the infringement or damage caused was intentional or voluntary;

·  whether any error of law was excusable; and,

·  whether the position taken by EU institutions may have contributed towards the adoption or maintenance of national measures or practice contrary to EU law.

c. This is a wrong answer. There is no threshold for the amount of damages suffered by an individual.

3. What were the main justifications provided by the ECJ in Joined Cases C-6/90 and C-9/90 Francovich for the establishment of the principle of State liability?

a. The necessity to ensure that the Member States meet their obligations deriving from EU law.

b. The necessity to ensure that the Member States implement correctly and timely EU directives aimed at the creation of the internal market bearing in mind that the deadline for the establishment of the internal market was approaching.

c. The peculiarity of the EU legal system, the necessity of ensuring the effectiveness of EU law and the requirements of Article 4(3) TFEU.

a. This is a wrong answer.

b. This is a wrong answer. Many commentators feel that this was the underlying reason for the establishment of the principle of State liability in the Francovich case but it is not a reason given by the ECJ!

c. This is the correct answer. The first justification was that EU law, being special, has the ability to create rights for individuals, including the right to obtain compensation for loss they suffer as a result of a Member State’s violation of their EU rights. The second justification was that the rights created for individuals by EU law must be given effect. The ECJ held that the full effectiveness of EU law would be impaired, and the protection of the rights granted by EU law would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of EU law for which a Member State can be held responsible. The third justification was based on Article 4(3) TEU which requires the Member States to take all necessary measures to fulfill their obligations deriving from EU law. This according to the ECJ includes an obligation to ensure that individuals have appropriate remedies under national law in a situation where their rights are violated by a Member State.

4. What did the ECJ decide in Case C-224/01 Köbler v Austria about the possibility of the principle of State liability being applicable to an infringement of EU law by a Supreme Court of a Member State?

a. There could never be any State liability for a breach of EU law attributable to a supreme court of a Member State.

b. There is a possibility for the principle of State liability being applicable in such a situation.

c. A Member State always incurs liability for a breach of EU law attributable to its supreme court.

a. This is a wrong answer. Although it was seen as an exceptional situation the ECJ decided that if the breach was sufficiently serious then the individual should not be deprived of the possibility of damages. In Köbler the ECJ decided that the breach was not sufficiently serious.

b. This is the correct answer. Although in Köbler the ECJ decided that the breach was not sufficiently serious to give rise to liability on the part of Austria, the possibility was identified where the breach was in fact sufficiently serious. In such exceptional circumstances the individual should not be deprived of the possibility of damages from the Member State.

c. This is a wrong answer. There is no automatic claim against a Member State. The conditions set out by the ECJ in its case law must be satisfied for a claim to be successful.

5. What was the name of the statute that led to the Factortame disputes?

a. The European Communities Act 1972

b. The Sex Discrimination Act 1976

c. The Merchant Shipping Act 1988

a. This is a wrong answer. Although the implications for parliamentary sovereignty argued in the Factortame cases did involve the 1972 Act it was not the catalyst for the Factortame cases.

b. This is a wrong answer. The Sex Discrimination Act has been subject to litigation in a number of cases involving EU law but it was not involved in the Factortame cases.

c. This is the correct answer.