Member State Liability Research Articles

State Liability for Judicial Decisions Infringing EU Law – the Polish Experience

The liability of Member States for damages caused by the issuance of a judicial decision in breach of EU law has been shaped in the jurisprudence of the CJEU, as a mechanism to ensure effective legal protection of EU citizens. Its primary purpose is to ensure that in a situation where a court of a Member State causes damage to a citizen by violating EU laws by its ruling, the citizen has a legal remedy to obtain compensation for such a violation. Based on the principle of procedural autonomy of the Member States, such claims can be asserted on the grounds of national procedural rules under the substantive legal grounds laid down by the CJEU in its case law.Research conducted by the authors of the article indicates that despite more than 18 years of Poland’s presence in the European Union, it is extremely difficult to find rulings on liability for damages for breach of EU law by Polish courts. It seems that such a state of affairs may be caused by ambiguities and interpretative doubts that arise on the grounds of Polish procedure in the case of claims for damages for breach of EU law by the courts. Both in the doctrine and case law there are far-reaching divergences as to whether the pre-judgment provided for in the Polish Civil Code should apply to claims for breach of EU law, and if so, when it should be applied. These doubts are reflected in the scant judicial case law on the issue in question. It seems that the indicated procedural doubts and lack of clarity as to the proper procedure in pursuing such claims may deter parties from more frequent initiation of proceedings to obtain compensation for breach of EU law by a national courts in the Polish context.

Vicarious liability of Member States for their Overseas Countries and Territories: Commission v. United Kingdom and Commission v. The Netherlands

Vicarious liability of Member States for their Overseas Countries and Territories: Commission v. United Kingdom and Commission v. The Netherlands

Vicarious Liability of Member States for Their Overseas Countries and Territories: Commission V. United Kingdom and Commission V. The Netherlands

Comment to Case C-391/17, Commission v. United Kingdom, Judgment of the Court of Justice (Grand Chamber) of 31 October 2019, EU:C:2019:919 and Case C-395/17, Commission v. The Netherlands, Judgment of the Court of Justice (Grand Chamber) of 31 October 2019, EU:C:2019:918 The judgments analysed both deal with the vicarious liability of Member States for their Overseas Countries and Territories (OCTs), an important issue of EU constitutional law.1 Both judgments also deal with the consequences of the duty of sincere cooperation for a loss of own resources to the EU budget due to acts or negligence of Member States. There are several technical complexities which make a rapid reading of the judgments, which differ somewhat in the two cases, more difficult. These complexities relate, first, to specific detailed issues on the application of the Overseas Association Decision of 1991 (1991 OCT Decision),2 and, second, to the liability of Member States for a breach of EU law towards the Union itself and towards other Member States. To sum up, the principle of vicarious liability of Member States for acts or negligence of their OCTs is clearly affirmed by the judgments in Commission v. United Kingdom and Commission v. The Netherlands. The Opinions of Advocate General Bobek provide further confirmation for that conclusion, even though he advised against accepting the specific claims of the Commission. The reasoning of the Court clearly shows that this vicarious liability is a consequence of the duty of sincere cooperation, as would have probably appeared even more clearly by endorsing the reasoning of Advocate General Cruz Villalon in his Opinion in Prunus, or the reasoning of this commentator, which is supported by the scholarship on EU overseas law.

Is the Statutory Limitation of Liability of the AFM and DNB Contrary to European Union Law?

Section 1:25d of the Dutch Financial Supervision Act (Wft) limits the liability of the Dutch financial supervisors, namely the AFM (the Dutch Authority for the Financial Markets) and DNB (the Dutch central bank), to cases in which the loss or damage is to a significant extent due to intent or gross fault. Does this go further than the ‘sufficiently serious breach’ which is set by EU law as a condition for member state liability? The judgment of the Court of Justice of the European Union (CJEU) currently under consideration has a direct bearing on how this question is answered.

Addressing Issues of Protective Scope within theFrancovichRight to Reparation

EU Law – Member State liability in damages – Issues of protective scope about exactly which individuals/interests are protected – Conditions for Member State liability – Intention to confer rights criterion – Tendency towards a ‘checklist’ approach by the Court of Justice of the European Union – Potential implications for scope of Member State liability – Finding appropriate balance between protecting individuals and punishing public bodies – Example of free movement rights – Example of environmental legislation – Example of employment legislation

La pertenencia a la Unión Europea y su repercusión en la responsabilidad patrimonial

The European Union membership has had impact on the field of State liability. Here, we first analyze the principle of pecuniary liability of Member States vis a vis individuals impaired by the breach of the European Union Law and second its actual incidence in our legal order.

Treinta años de ius publicum commune europeo en España

This dissertation briefly examines the process by which a body of common public law has been introduced in the Spanish legal system, over the last 30 years, under the influence of the EU law. The origins of that ius commune can be traced to the general principles recognized and applied by the European Court of Justice. In doing so, the ECJ has drawn first and foremost on common legal principles in the various EU member states. These general principles have taken a round-trip though: once they have been reshaped as a ‘European synthesis’, they have reenter the Member States legal systems as rules with a far reaching mandatory effect, binding national public bodies not only when they are implementing Union law, but also when their actions lay outside the scope of EU law. In order to explain this course, this paper proceeds through three different examples: the power and duty of national courts to apply interim relief in order to ensure the full effectiveness of EU law, Member State liability for breach of EU law and the doctrine of legitimate expectations.

Beyond the Forms of Faith:Pacta Sunt Servandaand Loyalty

AbstractThe need to fulfil treaty obligations in good faith bases both the principle ofpacta sunt servandaunder Article 26 of the Vienna Convention on the Law of Treaties and the principle of loyalty under Article 4(3) of the Treaty on European Union. This article seeks to understand the precise relationship between the two principles. It argues that the principles are different embodiments of the same root concept. In particular, it argues that loyalty is a more sophisticated and specific version of the concept, since it establishes that the relevant states and institutions must take account of each other's efforts to fulfill their obligations faithfully. While the Court of Justice of the European Union has observed the consequent need for greater flexibility when determining Member State liability, it has not done so consistently, especially in the context of EU external relations. Lastly, this article proposes that the presented conceptualization of loyalty andpacta sunt servandacould help us understand how other international subsystems might develop the basic concepts in general international law.

Eu Product Safety Law, Whistleblowers and Member State Liability for Acts of Officials

The significant Finnish case of a.g.m.-cos.met offered the chance for the ecj to revitalise and consolidate the forgotten second track of Union and Member State responsibility under eu law: vicarious State liability. It requires a tort of a public servant in performing his official duties (ex-Art. 40(2) tecsc, Art. 340(2) tfeu). The intricacy of the case was that the subject matter was not a regular everyday tort, but the tort of breach of eu law (effective infringement of free movement of goods – Art. 28 tfeu) through statements of a public servant. To determine an unjustified breach of eu law by the servant, the Court would have had to weigh and balance the fundamental freedom of the manufacturer and the servant’s fundamental right of freedom of expression. - The ecj missed the problem of the case. It pressed the public warning into the rigid scheme of breach of eu product safety law. Therefore acts of public servants must be transformed into acts of the State itself. Thus, the Court introduced a new type of semi-vicarious eu State liability, unknown to Member States’ law and to the international law. Last but not least, the Court missed the chance to make freedom of expression and public warnings outside the safeguard procedure compatible with the structure of eu product safety law.

The involvement of the EU in investor-state dispute settlement: A question of responsibilities

This article discusses the legal framework for the involvement of the EU and its Member States in Investor-State Dispute Settlement (ISDS) under EU and Member State international investment agreements (IIAs). It assesses whether the Financial Responsibility Regulation is a sufficient and appropriate instrument to address the issue. It examines if and when EU involvement in ISDS under EU IIAs is compatible with international law and argues that EU IIAs and the Regulation should take into consideration that international responsibility rules pose constraints on the EU and Member State participation in ISDS, and that ICSID arbitration can be a truly available ISDS option only if Member States can act as respondents in all disputes concerning violations of EU IIAs. The article then assesses the EU law implications of EU involvement in ISDS. It explores the threats to the autonomy of the EU legal order; it examines whether the allocation of financial responsibility is compatible with EU rules on EU and Member State liability; it discusses how the application and interpretation of the Financial Responsibility Regulation by the ECJ may interfere with ISDS proceedings. Finally, it identifies the limited scope for EU involvement in ISDS under Member State BITs, arguing that the price that Member States have to pay for retaining their own investment treaties is to bear full responsibility for all violations of their BITs, even if they result from EU conduct.

Member State Liability vs. National Procedural Autonomy: What Rules for Judicial Breach of EU Law?

In Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic, the European Court of Justice (ECJ) ruled that Community law precludes the existence of two types of national rules that limit State liability: (1) rules that exclude liability for damages due to an infringement of Community law that arises out of an interpretation of legal provisions or an assessment of facts or evidence carried out by a court adjudicating at last instance, or (2) those limiting liability solely to cases of intentional fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State in other cases where a manifest infringement of the applicable law was committed. This article, while recognizing that the ruling in Traghetti del Mediterraneo is in line with previous case‐law on Member States’ liability for breach of EU law, casts some doubts as to whether such an invasion of an area traditionally regulated by national law is in fact desirable. It questions what the foundations are of the procedural rights conferred by European law, and, in doing so, the extent to which European law can tamper with the constitutional balance of a state. Finally, it provides some tentative solutions to the dilemma faced by Italian law following the delivery of the Traghetti del Mediterraneo judgement.

Do Not Attack the Watchdog! Banking Supervisor's Liability After Peter Paul

Banking supervisory liability has recently received much attention both from supervisory authorities themselves as from academics, thanks to the preliminary proceedings brought by the German Supreme Court before the European Court of Justice (ECJ) in case C-222/02, Peter Paul. In its judgement of 12 October 2004, the ECJ has refused to apply Francovich type Member State liability to the obligations incumbent on Member States to exercise a prudential supervision over credit institutions pursuant to the various EU banking directives.After providing a general overview of banking supervisory liability in the laws of different EU Member States, we analyze and proceed to a critical assessment of the Peter Paul judgment. We submit that the Court has been too restrictive in refusing to find in prudential supervision a clear depositor protection oriented dimension. In our view, the Court has overreacted to the potential financial consequences of holding the State liable for negligence in the exercise of prudential supervision. We demonstrate that Francovich type liability allows to strike a fair balance between the rational expectations from depositors as to the quality of supervision on the one hand, and the need to take account of the complicity and discretion of the prudential supervisor in the assessment of liability on the other hand.

Member State Liability claim and English national law

Abstract: This paper researches the problem of establishing causal link in Member State liability cases of EU law before English courts. It tackles the presumption that the condition of direct causal link is left to national courts to determine. The author examines EU legal rules concerning the Member State liability and their interaction with national law. As an example of a national law the author examined English law and particularly the rules which are relevant for causation in Member State liability cases. The results show that the Member State liability principle and the conditions established in the case law of the Court of Justice of the EU influences the establishment of the causal link before national courts in Member State liability cases.

Is private enforcement of EU law through State liability a myth? An assessment 20 years after Francovich

This article assesses the success of Member State liability as a tool for the private enforcement of European Union law. The argument made is that Member State liability, first established 20 years ago in the Francovich case, is not a suitable and reliable mechanism to compensate for the weaknesses of public enforcement. The argument is based on statistical findings concerning the case law on Member State liability in two key Member State jurisdictions, England and Germany. The findings reveal that surprisingly little litigation has taken place so far and that only a handful of cases were litigated successfully. This leads the author to conclude that Member State liability has not been successful as a mechanism for the enforcement of EU law. The article continues by analysing why most of the proceedings initiated remain unsuccessful. It is shown that the criteria for the remedy are very difficult to satisfy and that there is reluctance on the part of national courts to award damages for the failure of Member States to comply with EU law. Against this background it is suggested that State liability under EU law should be chiefly regarded as a means of individual compensation rather than a tool for the private enforcement of EU law

The Cause of Member State Liability

Abstract: This article researches the problem of establishing causal link in Member State liability cases under European Union (EU) law. It tackles the presumption that the condition of direct causal link is left to national courts to determine. The author examines EU legal rules concerning the Member State liability and their interaction with national law. As an example of national law, the author examined German State liability law and those of its rules that are relevant for causation in Member State liability cases. The results show that the case law of the Court of Justice of the European Union influences the establishment of the causal link before national courts in Member State liability cases. Résumé: Le présent article traite du problème de l'établissement du lien causal dans des affaires de responsabilité d'un Etat membre en droit de l'UE. Il soulève la presumption selon laquelle il appartient aux cours et tribunaux nationaux de déterminer la condition du lien causal direct. L'auteur examine les règles du droit de l'UE concernant la responsabilité de l' Etat membre et leur interaction avec le droit national. A titre d'exemple de droit national, l'auteur analyse le droit de la responsabilité de l'Etat allemand et celles parmi ses règles qui s'appliquent au lien de causalité dans des cas de responsabilité d'un Etat membre. Les résultats indiquent que la jurisprudence de la Cour de Justice de l'Union européenne influence l'établissement du lien causal devant les cours et tribunaux nationaux dans des affaires de responsabilité d'un Etat membre. Zusammenfassung: Die vorliegende Arbeit untersucht die Frage der Feststellung des Kausalzusammenhangs in Fällen der Haftung von Mitgliedstaaten nach EU-Recht. Insbesondere wird diese Frage im Hinblick auf die Annahme, dass die Feststellung von der Voraussetzung des unmittelbaren Kausalzusammenhangs den nationalen Gerichten überlassen wird, analysiert. Die Autorin vergleicht EU-Rechtsvorschriften zur Haftung der Mitgliedstaaten mit den Vorschriften des nationalen Rechts. Als nationalrechtliches Beispiel führt sie deutsches Staatshaftungsrecht und für die Fälle der Haftung von Mitgliedstaaten maßgebende Vorschriften an. Aus der Analyse ergibt sich, dass die Rechtssprechung des Gerichtshofs der Europäischen Union die Feststellung des Kausalzusammenhangs in Fällen der Haftung von Mitgliedstaaten vor den nationalen Gerichten beeinflusst.

Comparative aspects of the application of the principle of State liability for judicial breaches

This paper examines the principle of Member State liability for breaches of European Union law committed by a national court adjudicating at last instance as established in the ruling of the Court of Justice of the European Union of September 2003 in the Case C-224/01 Gerhard Kobler v. Republic of Austria. It focuses on the assessment by the European Court of Justice in that case of the various approaches to Member State liability for judicial breaches under the national laws of the (then) fifteen European Union Member States. In an attempt to verify the Court’s conclusions, namely that the concept of State liability for judicial breaches constitutes a common principle that has been accepted in most European Union Member States, the paper presents a comparative overview of the prevailing national legal concepts in the area of State liability for judicial breaches.

European public law: new developments of old principles

On 1–2 December 2011, ERA organised for the second time a conference1 marking the anniversary of the Francovich judgment of the European Court of Justice2— the ruling which, twenty years ago, established the principle of member state liability for infringement of European Union law. Since then, the Court has extended its state liability jurisprudence to infringements by the legislature (Brasserie du Pecheur/Factortame3) and by the judiciary (Kobler4). According to the principle,

Conceptualizing Pure Economic Loss in the European Union: An Observation of Liability Law in the Member States and the European Union

'Pure economic loss' – the name points to the fundamental principle of the concept: loss that is only economic in nature and in no way connected to underlying property or physical damage. However, such a clear name obscures the variety of ways this concept is dealt with by the Member States of the European Union. In fact, it is only a minority of legal systems that define this concept at all. The majority does not recognize this category of damage under any name, let alone as an autonomous concept. Yet, pure economic loss holds an important place in tort law and is approached with trepidation by many policy-minded judges all over the EU. It is important for European lawyers to fully understand what pure economic loss is, how it is viewed in different countries, and to understand the implications of European Union law on recovery of pure economic loss. This paper will first address the ways in which one can study a topic approached in such diverse ways throughout the Union. Second it will explain how one can conceptualize this topic in a way that does justice to the EU Member States’ perceptions thereof. Finally, it will touch upon how pure economic loss can be understood within the context of developing European Union law for non-contractual liability of institutions, Member States, and individuals. The conclusion will set out the implications these observations have for the future of pure economic loss recoverability in the EU.

Member State Liability vs. National Procedural Autonomy: What Rules for Judicial Breach of EU Law?

InTraghetti del Mediterraneo SpA in Liquidation v. Italian Republic, the European Court of Justice (EG) ruled that Community law precludes the existence of two types of national rules that limit State liability: (1) rules that exclude liability for damages due to an infringement of Community law that arises out of an interpretation of legal provisions or an assessment of facts or evidence carried out by a court adjudicating at last instance, or (2) those limiting liability solely to cases of intentional fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State in other cases where a manifest infringement of the applicable law was committed. This article, while recognizing that the ruling inTraghetti del Mediterraneois in line with previous case-law on Member States' liability for breach of EU law, casts some doubts as to whether such an invasion of an area traditionally regulated by national law is in fact desirable. It questions what the foundations are of the procedural rights conferred by European law, and, in doing so, the extent to which European law can tamper with the constitutional balance of a state. Finally, it provides some tentative solutions to the dilemma faced by Italian law following the delivery of theTraghetti del Mediterraneojudgement.

Private Party Liability in EU Law: In Search of the General Regime

AbstractThe emergence of private party liability in damages is EU law has been much discussed by academics, but it is clear from the case law of the Court of Justice that we do not yet have a principle of private party liability analogous to the principle of Member State liability. This chapter examines under what conditions it would be justified to claim that there was indeed a general principle of private party liability in EU law. Furthermore, the chapter explains that the introduction of the general principle of private party liability would require a thorough clarification of some of the most fundamental, yet still unclear, concepts of EU law, such as direct effect, the horizontal applicability of EU norms and the principle of effective judicial protection. It is argued that the jurisdiction of the Court of Justice to introduce a general regime of private party liability in damages is not without controversy and that the judicial creation of the principle will be legitimate only if adequate normative justification is provided for its presence in EU law. In this respect, it has to be recognised that EU competition law is not an adequate legal setting for the general regime to be born, because it does not bring to light tensions arising in other contexts.