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State Liability Notes

GDL Law Notes > GDL EU Law Notes

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A more recent version of these State Liability notes – written by Cambridge/Bpp/College Of Law students – is available here.

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State Liability _______________________________________________________

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

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