EU Law- question about state liability and date of implementation

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positivevibes
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#1
Report Thread starter 9 years ago
#1
If a MS has failed to implement a directive, but the date of implementation had not passed when the claimant had their accident, can the claimant use a state liability argument or not?

I assume not but just want to check...
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Playa10
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#2
Report 9 years ago
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(Original post by positivevibes)
If a MS has failed to implement a directive, but the date of implementation had not passed when the claimant had their accident, can the claimant use a state liability argument or not?

I assume not but just want to check...
No....but consider indirect effect and incidental effect
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jjarvis
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#3
Report 9 years ago
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(Original post by positivevibes)
If a MS has failed to implement a directive, but the date of implementation had not passed when the claimant had their accident, can the claimant use a state liability argument or not?

I assume not but just want to check...
Two things. First, state liability only arises where a directive can't be given direct effect. It's a last resort--usually a claimant is better off seeking to enforce the directive. Secondly, the general understanding is that a claimant can't rely on an unimplemented directive before the deadline for its transposition. The cases that upset this general rule deal with general principles. Note that in Mangold the deadline had *not* expired, but the ECJ nonetheless held that Germany was prohibited from taking measures that interfered with the achievement of the directive's object. This is one of the cases suggesting that a claimant can rely on a directive giving effect to a general principle of law. This line of authority is difficult, and often confused, so it's not really possible to give a straightforward answer.
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positivevibes
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Report Thread starter 9 years ago
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(Original post by jjarvis)
Two things. First, state liability only arises where a directive can't be given direct effect. It's a last resort--usually a claimant is better off seeking to enforce the directive. Secondly, the general understanding is that a claimant can't rely on an unimplemented directive before the deadline for its transposition. The cases that upset this general rule deal with general principles. Note that in Mangold the deadline had *not* expired, but the ECJ nonetheless held that Germany was prohibited from taking measures that interfered with the achievement of the directive's object. This is one of the cases suggesting that a claimant can rely on a directive giving effect to a general principle of law. This line of authority is difficult, and often confused, so it's not really possible to give a straightforward answer.

Thanks very much.

Also, with respect to direct effect and something having to be 'clear, precise and unconditional'....... if a provision asks a state to achieve something that requires them to take positive action in the way of implementing it, it is conditional? Or does the conditionality bit refer to higher bodies than the MS taking measures?
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gethsemane342
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#5
Report 9 years ago
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(Original post by positivevibes)
Thanks very much.

Also, with respect to direct effect and something having to be 'clear, precise and unconditional'....... if a provision asks a state to achieve something that requires them to take positive action in the way of implementing it, it is conditional? Or does the conditionality bit refer to higher bodies than the MS taking measures?
The directive or regulation will not have direct effect unless it's clear, precise and unconditional. It hasn't got much to do with the implementation of it, it's to see if the measure has the potential to be directly effective (generally, this criteria is satisfied. Especially for regulations though there is a case where it didn't - I think it had Taco in the name)
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Spangun
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Report 6 years ago
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So if the claimant has suffered a loss, will he still get compensation if he is successful at enforcing the directive? Or is state liability route different in that way as well?
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