REGNRSG 105 Lecture Notes - Lecture 16: Res Judicata, Judicial Independence, R (Factortame Ltd) V Secretary Of State For Transport
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Chapter 5: MS liability in damages
The meaning of ‘MS’ for the purpose of damage claims
• Actions by any part of the MS may give rise to liability
• A MS may require claims tob e brought against the part of the state which
committed the breach
• In a federal state, reparation for damage caused by breaches of EU law committed
by a federal local authority don’t need tob e provided by the federal state itself.
BUT the state must ensure that individuals can obtain reparation for damage
caused to them by breaches of EU law, regardless of which public authority was
responsible for the breach, and which public authority was in principle
responsible for making reparation. Result: a MS cannot plead the separation of
powers in order to avoid liability.
The establishment of the principle of state liability: Francovich
Facts of the case: F was owed wages by a company that had become insolvent. Italian
law didn’t provide for remedies but a directive did. Italian gov failed to transpose that
directive. Doctrines of direct and indirect effect didn’t give him the rights the directive
had intended to give him
→ Court developed an alternative solution: MS which breaches its obligation to
transpose a directive by the deadline for its transposition can be held liable in damages
to an individual or business which has suffered loss as a result (see paras 28-37
Francovich case)
The Francovich conditions governing the imposition of state liability
All contained in para 40 Francovich case
1. The result prescribed by the directive must involve the grant of rights to
individuals
− Within the jurisdiction of the CoJ bc involves interpretation of EU law
2. The content of those rights must be clear from the directive
3. There must be a causal link between the breach of the state’s obligation and the
damage suffered by the individual
− Requires establishment of the facts and the application of EU law, so it’s a
matter for national courts
Document Summary
In a federal state, reparation for damage caused by breaches of eu law committed by a federal local authority don"t need tob e provided by the federal state itself. Result: a ms cannot plead the separation of powers in order to avoid liability. The establishment of the principle of state liability: francovich. Facts of the case: f was owed wages by a company that had become insolvent. Italian law didn"t provide for remedies but a directive did. Doctrines of direct and indirect effect didn"t give him the rights the directive had intended to give him. The francovich conditions governing the imposi tion of state liability. All contained in para 40 francovich case: the result prescribed by the directive must involve the grant of rights to individuals. Requires establishment of the facts and the application of eu law, so it"s a damage suffered by the individual matter for national courts. The development of the principl e of state liability.
