Member States Liability in Damages Caused to Private Parties for Breaches of the Law of the European Community: the Origin, the Conception and the Conditions
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Abstract
This article analyses the origin, the conception of the member states liability in damages for breaches of EC law and also the conditions for liability, established by the Court. We can not find the provisions regulating the questions of member states liability in damages in the articles of the Treaty. The necessity to apply this kind of liability was introduced by the Court and in such a way complemented the principles of supremacy, direct effect and efficiency of EC law, which is vital for the protection of the rights of private parties. Member states liability in damages is enshrined in EC law, but implemented under national level in every member state. That is why a member state, having committed a breach of EC law, is obliged to pay compensation for harm caused to private parties by breaches of EC law for which it can be held responsible according to the provisions of national law.
Harm can be caused to private parties by infringing provisions of EC law. It is being acknowledged, that member states liability in damages arises where three conditions are met: firstly, the rule of law infringed must have intended to confer rights on private parties. If that rule of law is a directive, the content of the rights must be discernible on the basis of the provisions of the directive; secondly, the breach must be sufficiently serious; thirdly, there must be a direct causal link between the breach and the damage. The Court has established in its jurisprudence, that it is not important, which member state authority is responsible for the breach of EC law. The most important is the fact that member state authority is obliged to pay compensation for harm caused to private parties by breaches of EC law.
It is not difficult to identify, that the rule of law infringed must have intended to confer rights on private parties. Much more difficult is to determine, if the breach is sufficiently serious.
Therefore the Court has established a number of factors which must be taken into consideration in determining, if the breach is sufficiently serious: the clarity and precision of the rule breached; the measure of discretion left by that rule to the national authorities; whether the infringement and the damage were intentional; whether any error of law was excusable; whether national measures or practices contrary to Community law were adopted or retained. The most essential question in examining the sufficiently seriousness of the breach is the measure of discretion left to the member state authority. For a member states liability in damages to arise there must be an existence of a direct causal link between the breach and the damage also. Causal link should be determined in the first place by Community law taking into consideration individual facts of the case.
The Court in practice estimates by itself, if the provision of EC law is intended to grant rights to a private party. Whereas, a national court estimates itself, if a breach is intended to be sufficiently serious and if there is a direct causal link between the breaches of the obligation resting on the member state and the damage sustained by the injured parties.
However, in the practice there are still cases where the Court itself judged on not only the sufficiently seriousness of the breach, but also on the existence of a direct causal link between the breach of the obligation resting on the member state and the damage sustained by the injured parties. It is in accordance with the rules of national law on liability that a member state must pay compensation for harm caused to private parties by breaches of EC law.
Harm can be caused to private parties by infringing provisions of EC law. It is being acknowledged, that member states liability in damages arises where three conditions are met: firstly, the rule of law infringed must have intended to confer rights on private parties. If that rule of law is a directive, the content of the rights must be discernible on the basis of the provisions of the directive; secondly, the breach must be sufficiently serious; thirdly, there must be a direct causal link between the breach and the damage. The Court has established in its jurisprudence, that it is not important, which member state authority is responsible for the breach of EC law. The most important is the fact that member state authority is obliged to pay compensation for harm caused to private parties by breaches of EC law.
It is not difficult to identify, that the rule of law infringed must have intended to confer rights on private parties. Much more difficult is to determine, if the breach is sufficiently serious.
Therefore the Court has established a number of factors which must be taken into consideration in determining, if the breach is sufficiently serious: the clarity and precision of the rule breached; the measure of discretion left by that rule to the national authorities; whether the infringement and the damage were intentional; whether any error of law was excusable; whether national measures or practices contrary to Community law were adopted or retained. The most essential question in examining the sufficiently seriousness of the breach is the measure of discretion left to the member state authority. For a member states liability in damages to arise there must be an existence of a direct causal link between the breach and the damage also. Causal link should be determined in the first place by Community law taking into consideration individual facts of the case.
The Court in practice estimates by itself, if the provision of EC law is intended to grant rights to a private party. Whereas, a national court estimates itself, if a breach is intended to be sufficiently serious and if there is a direct causal link between the breaches of the obligation resting on the member state and the damage sustained by the injured parties.
However, in the practice there are still cases where the Court itself judged on not only the sufficiently seriousness of the breach, but also on the existence of a direct causal link between the breach of the obligation resting on the member state and the damage sustained by the injured parties. It is in accordance with the rules of national law on liability that a member state must pay compensation for harm caused to private parties by breaches of EC law.
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Please see Copyright and Licence Agreement for further details.
