State liability

State liability

In European Union law, state liability arises when a member state of the European Union breaches EU law and an EU citizen suffers a loss as a result. The effect of state liability is that damages may be recoverable in respect of the loss suffered.

The doctrine was introduced in the case of "Francovich and Bonifaci v Republic of Italy" (Cases C-6 and 9/90) [1991] ECR I-5375, [ [http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=61990J0006&model=guichett "Francovich and Bonifaci v Republic of Italy"] (Cases C-6 and 9/90) [1991] ECR I-5375] where the Italian government failed to adequately implement Directive 80/987, which required the establishment of a scheme to set a minimum compensation for workers in the event of the insolvency of their employers, the result being that when the claimants became unemployed, they were unable to recover the wages due to them. The European Court of Justice (ECJ) held that the Italian government had breached its obligations, and was liable to compensate the workers' loss resulting from the breach.

The ECJ found that to establish state liability on the basis of the failure the implement a directive, the claimant must prove that the directive conferred specific rights on him, identifiable in its wording, and that there is a causal link between the state's failure to implement the directive and the loss suffered.

The doctrine was modified in the cases of "Brasserie du Pêcheur v Federal Republic of Germany" and "R v Secretary of State for Transport ex parte Factortame Ltd" (Cases C-46 and C-48/93) [1996] ECR I-1029. [ [http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=61993J0046&model=guichett "Brasserie du Pêcheur v Federal Republic of Germany" and "R v Secretary of State for Transport ex parte Factortame Ltd"] (Cases C-46 and C-48/93) [1996] ECR I-1029] The ECJ defined the criteria for establishing state liability as:
*The EU law breached must have been intended to confer rights on individuals,
*The breach must be sufficiently serious,
*There must be a direct causal link between the state's breach and the loss suffered.

The most ambiguous criterion for establishing state liability is the required level of seriousness. According to the case of "Dillenkofer and others v Federal Republic of Germany" (Cases C-178, 179, 188, 189 and 190/94) [1996] ECR I-4845, [ [http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=61994J0178&model=guichett "Dillenkofer and others v Federal Republic of Germany"] (Cases C-178, 179, 188, 189 and 190/94) [1996] ECR I-4845] failure to implement a directive within the time limit automatically constitutes a sufficiently serious breach. Otherwise, according to "R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd" (Case C-5/94) [1996] ECR I-2553, [ [http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=61994J0005&model=guichett "R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd"] (Case C-5/94) [1996] ECR I-2553] the claimant must prove that the breach is sufficiently serious to justify state liability.

See also

* Direct effect
* Incidental effect
* Indirect effect

Cases


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