Also with concerns to direct effect if the criteria is fulfilled can the applicant get state liability or do they not need to?
thanks, very confused
How does state liability work? In a horizontal relationship can an individual still get state liability for their employer failing to take note of a directive?
GDL (at UoL Moorgate) approach:
- Does the issue relate to the non-implementation of a Directive by the Member State? (this should be obvious)
- Define State Liability.
- Outline the criteria in the Frankovich and Factortame cases and then decide which one is appropriate for the situation (the former applying to a serious breach, the latter to a less serious breach of EU Law).
- Decide whether those criteria are met and if the Member State is liable.
State liability, defined in the Frankovich case: when a Member State (MS) may be required to pay compensation to individuals for damage suffered as a result of a its failure to implement a Directive (i.e. where the MS is the true author of the claimant's misfortune).
Depending on the seriousness of the breach of EU law you use the three criteria laid out in either Frankovich or Factortame. Be sure to mention all three criteria from both cases when answering a problem question.
You'd first mention Frankovich: For the MS to be held liable...
1. ...the Directive must confer rights on individuals.
2. ...the content of those rights must be identifiable.
3. ...there must be a causal link between the failure to implement and the damage suffered.
You'd then mention Factortame: ECJ's reformulated test for situations in which the MS has some discretion to act (i.e. an MS has discretion when deciding how it goes about implementing a Directive).
1. Does the breach infringe the rule of law intended to confer rights on individuals?
2. Is the breach sufficiently serious?
NB: Whether or not it is sufficiently serious depends on whether or not the MS has "manifestly and gravely disregarded the limits of its powers." This is determined by considering some factors in...
R v HM Treasury, ex parte BT:
- Was the Directive clear or vague?
- Had the Commission given any guidance on the matter (via an Art. 267 reference)?
- Had there been any guidance in the case law of the ECJ?
- Had any other MSs made the same error?
3. Is there a direct causal link between the breach of the MS's obligation and the damage to the applicant?
Having mentioned all the criteria in both cases you might then refer to this case...
Dillenkofer v Germany : indicates that a total failure of implementation is automatically considered a serious breach of EU law, since no MS has any discretion as to whether or not it decides to implement a Directive.
If Dillenkofer v Germany applies then you employ the criteria from Frankovich. If not you may apply the three criteria from Factortame. I realise it seems as though you might do this earlier but we were told, for a distinction, to go through all criteria for both cases and then select the one we considered to be appropriate.
Whichever case you decide applies, if all the criteria are met the MS shall be liable.
With regard to horizontal relationships, I don't see why you couldn't use State Liability, as long as criteria are met and the MS has erred. However we were taught that State Liability is generally only used if you cannot rely on Direct or Indirect Effect. Seeing as the latter was developed specifically to allow a horizontal remedy it would seem a better fit.
thanks, very confused
As I understand it an applicant has three potential approaches: Direct Effect, Indirect Effect, or State Liability. You will only end up using one, even if all three are available to you.
If you can use Direct Effect I believe you would prefer it to State Liability. I presume this is because it is easier to bring a claim in your national court against the state rather than pursuing a claim against the state in a European court... but that is really me guessing there, it's been a few months since I used this stuff...
All I know for sure is that State Liability is usually considered to be your last resort if Direct & Indirect Effect won't work. Of course, since Direct Effect must be used against an "emanation of the state" (Foster v British Gas) it seems likely that, whenever you find yourself able to use Direct Effect, you might also be able claim against the MS using State Liability. In any case, for the sake of completeness, I would recommend working through all alternatives and then informing the client of which one you consider preferable.
The second part of my coursework question concerns a private employer, I am wondering if state liability can apply to this even if direct effect can't?
Also with concerns to indirect effect does this mean that national court have to read their domestic legislation in light of the EU law provisions? But not so far as to read into them a new meaning that otherwise wouldn't be there?
The third question I'd like to ask is what would happen if the implementation period hasn't expired yet? Surely the applicant can't rely on direct effect or state liability since one of the conditions is that the implementation period has passed?