Legal Reasoning of the European Court of Justice for the Creation of the State Liability Doctrine
Reading
General reading:
From your preferred text book:
Craig and De Burca (more on 241-254 than on 218-241)
Case law
*Cases C-6/90 and C-9/90 Francovich and Bonifaci v. Italy [1991] ECR I-5357
** Cases C-46 and 48/93 Brasserie du Pecheur v. Germany and Factortame v. UK (Factortame III) [1996] ECR I-1029
Case C-224/01 Köbler v. Austria [2003] ECR I-10239
Journals
Emiliou N, ‘State Liability under Community Law: Shedding more Light on the Francovich Principle?’ (1996) 21 ELRev 399
Beutler S, ‘State Liability for Breaches of Community Law by National Courts: Is the Requirement of a Manifest Infringement of the Applicable Law an Insurmountable Obstacle?’ (2009) 46 CMLRev 773
Craig P, ‘Once More unto the Breach: The Community, the State and Damages Liability’ (1997) 105 LQR 67
Questions to discuss during the tutorial:
1. Describe the legal reasoning of the ECJ for the creation of the state liability doctrine. Do you agree with this reasoning?
(see below, Q2)
2. [EXAM TYPE QUESTION]: ‘State liability is the defining moment in the ECJ’s pursuit for effective judicial protection.’ Critically evaluate this statement.
( talk about other remedies; direct effect, indirect effective, Mangold, supremacy, incidental effect.)
What is state liability about?
Effective judicial protection of the individual
Punishment of states. (Sufficiently serious breach and factors).
Factors indicate more about punishment (e.g. intention, excusable), if state liability was to protect individuals they should all be able to sue.
Case of Rewe – stated that new remedies should be created, however…
State liability is a type of individual enforcement (individual against the state.)
It is a construct of the ECJ – established in Francovich as a remedy for individuals for breach of EU law by the state.
Francovich judgement main points:
In order for EU law to be effective, individuals need to be able to enforce their rights, so in order to give
General reading:
From your preferred text book:
Craig and De Burca (more on 241-254 than on 218-241)
Case law
*Cases C-6/90 and C-9/90 Francovich and Bonifaci v. Italy [1991] ECR I-5357
** Cases C-46 and 48/93 Brasserie du Pecheur v. Germany and Factortame v. UK (Factortame III) [1996] ECR I-1029
Case C-224/01 Köbler v. Austria [2003] ECR I-10239
Journals
Emiliou N, ‘State Liability under Community Law: Shedding more Light on the Francovich Principle?’ (1996) 21 ELRev 399
Beutler S, ‘State Liability for Breaches of Community Law by National Courts: Is the Requirement of a Manifest Infringement of the Applicable Law an Insurmountable Obstacle?’ (2009) 46 CMLRev 773
Craig P, ‘Once More unto the Breach: The Community, the State and Damages Liability’ (1997) 105 LQR 67
Questions to discuss during the tutorial:
1. Describe the legal reasoning of the ECJ for the creation of the state liability doctrine. Do you agree with this reasoning?
(see below, Q2)
2. [EXAM TYPE QUESTION]: ‘State liability is the defining moment in the ECJ’s pursuit for effective judicial protection.’ Critically evaluate this statement.
( talk about other remedies; direct effect, indirect effective, Mangold, supremacy, incidental effect.)
What is state liability about?
Effective judicial protection of the individual
Punishment of states. (Sufficiently serious breach and factors).
Factors indicate more about punishment (e.g. intention, excusable), if state liability was to protect individuals they should all be able to sue.
Case of Rewe – stated that new remedies should be created, however…
State liability is a type of individual enforcement (individual against the state.)
It is a construct of the ECJ – established in Francovich as a remedy for individuals for breach of EU law by the state.
Francovich judgement main points:
In order for EU law to be effective, individuals need to be able to enforce their rights, so in order to give