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GDL Law Notes GDL EU Law Notes

State Liability Notes

Updated State Liability Notes

GDL EU Law Notes

GDL EU Law

Approximately 409 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from top students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. This collection of GDL notes is fully updated for recent exams, also making them the most up-to-date GDL study materials ...

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State Liability

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Remedies in the National Courts

Before Francovich individuals relied on domestic public noncontractual liability: the “noninterventionist” (Michael Haba) approach leaving procedural rules untouched – this left the impression that state liability flowed from national legal systems as the Court approached remedies “with almost complete indifference” (Caranta)

However gradually the “period of intervention” (Haba) sought to harmonise remedial access for citizens of the free market:

Principle of Procedural Autonomy: no duty to establish special remedies for EU law infringements; however:

Rewe 1976

Violation of treaty provision & regulation (directly effective)

Held: national courts “entrusted with ensuring the legal protection which citizens derive from the direct effect of the provision of Community law” either in accordance with EU law, or in the absence of harmonisation of the right by the conditions laid down by national rules

Van Schijndel 1995:

Raised question of EU law at SC stage; SC felt bound to accept facts of first instance court – could it depart from normal judicial procedure to give effect to EU law?

Held: it should apply EU law & the principle of procedural autonomy means courts will have to work out “procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law”

  • Principle of Equivalence

  • Principle of Effectiveness

    • Importance of remedial action for EU breaches, as otherwise it is powerless

    • Duty of cooperation Art 4 TEU– MS must give judicial protection to individuals

  • Could a national rule be saved by the principle of reason? i.e. if a domestic rule stands in the way to EU law whether it could be justified by “the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure” Here it could – the SC did not have to depart from its passive role

Peterbroeck: principle of reason did not save a Belgian rule about limitation periods for appeals

Unibet:

  1. Effective judicial protection is a general principle of EU law(ECHR influence & constitutional traditions)

  2. Art 4 duty of cooperation

  3. Principle of procedural autonomy (Rewe)

  4. Principle of subsidiary – in the absence of EU rules, the domestic rules apply (Rewe)

  5. The Community Court was not “intended to create new remedies”

  6. However this is not to the extent of undermining effective judicial protection

    1. Principles of equivalence & effectiveness

  7. Domestic procedural rules must be towards the objective of ensuring effective judicial protection

Birth of state liability

Art 340 TFEU : noncontractual liability to make good any damages

Zuckerfabrik Schoeppenstedt

“the Community does not incur noncontractual liability…unless a sufficient flagrant violation of a superior rule of law for the protection of the individual has occurred”

The creation of an EU remedy for state breaches:

Francovich 1991

Working in Italy & employer went bust. Directive where employers must set up insolvency fund. Mrs. Francovich tried to get some money out of this fund, but realised there was no money. Wanted to see if she could sue using national laws - she could not (directive not implemented). She tried to rely directly on the directive - could not (failed Marshall test). She thought about indirect effect - could not (no relevant Italian legislation). She decided to sue the state (under direct effect) for making it impossible for her to exercise her EU right: Italian gov’s failure to implement directive was the direct cause of the breach of her right.

Held: the full effectiveness of EU rules would be impaired & weakened if individuals couldn’t seek a remedy for a breach where other tools are unavailable. A state must be liable for its own breaches is...

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