stems from direct effect and supremacy. Van Gend en Loos set out the concept of direct effect. EU law is now part of the national law autonomy. EU law should always prevail between national law and EU law. EU law has direct effect. If a member state breaches their obligation to enforce EU law, no a...
6/28/23, 7:05 AM EU Law - Lecture 4 - EU law notes form City University, London
EU LAW
LECTURE 4
STATE LIABILITY
State Liability: stems from direct effect and supremacy. Van Gend en Loos set out the
concept of direct effect. EU law is now part of the national law autonomy. EU law should
always prevail between national law and EU law. EU law has direct effect. If a member state
breaches their obligation to enforce EU law, no adhering to EU law is that you are breaking
the rule. State liability is the solution.
State liability is a remedy available to you [citizen] when a member state fails to adhere to
their obligation under EU law. it is a form of financial compensation. The member state will
pay out to the individual who has been wronged and effected by the breach. The EU doesn’t
pay out so the member state must pay out.
Why would states be liable?
They created the idea of state liability as it is the best and effective way to ensure it is
effective.
Some states have a lot of money, they may not be put off as the sum won’t affect them
Treaty did NOT intend to create new remedies. The Court created the idea of direct effect
and supremacy. What the court has constantly emphasised I that it didn’t intend to create a
new remedy and instead are saying the concept of state liability had always existed and
wanted to emphasise this concept.
Importantly, liability can occur for many different breaches, the simplest being non-
enforcement of EU law under treaty, directives, regulation or decision. It is a broad, across
the spectrum remedy.
C-6/90 and C-9/90 FRANCOVICH [1991]
Francovich is the source for state liability, Some Italians were seeking compensation against
Italy their own member state, they argued they failed to implement a directive. They
demanded compensation as a result of this as they were struggling for money. The Court
decided that Italy was responsible for not implementing the directive. This was a
consequence for the individual and were lucky enough to get protection. The court
attributed claim to the member state because if they didn’t give a remedy to the individual
then the full effectiveness of Community rules would be impaired and the protection of the
rights which they grant would be weakened. If we didn’t have state liability then EU law
would be that relevant and there needed something to be relied upon.
Reasons for having State Liability
Helped with enforcement and unimplemented Directives – The risk of a fine is
unattractive so it would motivate the member state enforce directives.
Inherent in the Treaty anyway – not a new remedy
Adhering to principle of sincere cooperation and procedural autonomy [C-33/76
Rewe [1971]] – countries signed up to the EU s should do the very best to adhere and
cooperate with EU rules.
Applying the principle of cooperation laid down in Article [4] of the Treaty, it is the
national courts which are entrusted with ensuring the legal protection which
citizens derive from the direct effect of the provisions of Community law.
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