Essay: Sufficiently serious breach under EU law

Sufficiently Serious Breach is considered to be a requirement under Union Law required for every single person to compensate for breaching their rights discussed at the time by provisions of Union Law. If there is a damage caused to an individual by violating the Union Law, both Union and Member States can be held liable for it. Founding Treaties of the EU contain only general provision relating to the EU’s liability for damages in Article 340 of the TFEU . This declares that the Court of Justice of the European Union has the power in disputes affecting the repayment of the damage in cases of non-contractual liability of Union and European Central Bank. It is declared in the general provision that in cases of its non-constitutional liability, the Union should accept any damage in agreement with general principles which are common with the laws of the Member States.
In 1992, it was found out that Member State can also be held liable for violating the Union Law. In Francovich’s case , “inherent in the system of the Treaty was introduced as a non-constitutional liability of the member States. A member was held liable in Francovich’s case due to the failure to switch in its national legislation which directly aims to form more rights for people. In Brasserie case, the court established the circumstances under which Member States can obtain non-constitutional liability “cannot in the absence of particular justification, differ from those governing the liability of the Community in like circumstances.”
A claim for damages originates where rights discussed on individuals were violated. Rights such as the fundamental rights hold a significant viewpoint in all contemporary legal orders. This is also similar in the Union Law where the constitutional rights form general principles of Union legal order. In the Union law, Fundamental rights have become progressively essential, specifically in the light of the enactment of the Charter of Fundamental Rights and the future succession of the Union to the ECHR.
The understanding of the Court’s ruling in the Case Francovich v. Italy is by saying, “Francovich introduced the notion of state liability, and created substantive rights for individuals in certain circumstance.” The most understandable outcome of the Francovich judgement is that in each Member State national judges must pass a claim for damages opposing the Member state, if the specified conditions are completed. In any case, the National legal system acknowledges this case to be unimportant. A remedy system against the Member state should be made accessible within national laws on civil liability, but it is every state’s decision that which courts will be qualified to handle specific claims and to also resolve the planning prospect.
In addition, the Francovich decision can perhaps be considered as a means of significant power to claim damages opposing any state who hasn’t enforced a directive within the appropriate time period.
Evidently, Member States can be in breach of Community law in many different ways, which is not by non-reversing of a directive. The decision was not made up until the Brasserie du Pecheur case and later cases that if the Francovich principle would apply to others breaches of Community law including legislative, administrative and judicial acts or breaches.
Brasserie du Pecheur Sa v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others is one of the most important cases regarding liability of the Member States for breaches of Union law which discusses that the Court eventually clarified three required conditions in order to get compensation of the loss for the individuals. Sufficiently serious breach is one of the required conditions out of the three. The Court was able to establish this required condition from the Schöppenstedt test. It is also introduced as discretion which is accessible to the national authority as a foundation to determine if there was a breach of sufficient seriousness or not.
One of the conditions which is significant to build the liability of Member State for breaches of Union law was sufficiently serious breach. In deciding the conditions governing liability, the Court emphasized that the account should be concerning the principles built-in the Union law, its full capability and efficient judicial stability of every individuals’ rights which arises from Union Law. In addition, the Court was able to institute that in similar conditions, which consisted of the sufficiently serious breach, which will affect the liability of the Member States despite the violation is capable of being traced to the legislature, the judiciary or the administrative individuals. This concept was taken from the liability of the States in international law. Additionally, in the lack of specific justification, the Court made clear that the conditions in which Member States are able to obtain liability cannot, which conflict from those governing the non-contractual liability of the Union. The Court was able to use this in Bergaderm.
It can be argumentative if similar method assures complete efficiency of Union law and valid judicial protection of individuals’ rights that arise from it. Essentially, the Court practices with a altered version of the Scöppenstedt test. This test was designed to set the liability of Union legislative authorities and also expands it. It also helps identify the judiciary and administrative actions. This is a regressive practice as in cases in which violation is able to identify to the administrative action of the Union a sufficiently serious breach is not needed which is mentioned in case Adams . The Court has also expanded the liability on the judiciary which was not included earlier- this was explained later in the case Kobler .
The decision made in Kobler v Austria , the Court of Justice of the European Union was able to govern for the very first time that the principle of State liability in damages expands to breaches of EU law by National Courts. Drake disputed with an argument that as long as the possibility of State liability for judicial breach in principle shows an additional strengthening of the principle of effective judicial protection, the Court was also well aware to ‘appease’ the Member States who disputed this recognition.
The Court also used the adaptability inherent in the need for a sufficiently serious breach to limit the reach of this solution and get rid of any matter on the part of the Member State which may be economically liable for unintentional breaches of Community law by judicial error.
The most challenging aspect to Member State liability for deals with liability for rulings by national courts. This was brought up in Kobler v Austria. The Austrian Administrative made the decision to pass on the matter to the Court of Justice but eliminate the reference on the grounds that the issue has already been resolved by the Court, which has ruled a method to be lawful. Kobler also argued that reason of the judicial failure was that Member State was liable and misunderstood the Court of Justice’s case law. The Court also admitted that there was a misunderstanding and as Takis said, Köbler liability is ‘subject to such stringent conditions that in practice liability would be established in few and exceptional cases’.
In regard to this, it was established in the Traghetti case that judicial liability will only be acquired in unique cases where that court considerably breach the application law. it has also been opposed before in which situations, the Court would be willing to claim on judicial liability is being applied. Specifically, as the Union judicial law relies on cooperation between National Courts and the Court of Justice. Even rare invocation of national Judicial liability can damage the ideology supporting this cooperation
In conclusion, it can be understood from studying numerous CJEU’s case law on what creates a “sufficient serious breach” of European Union Law for outcome of the state liability and if it lacks clarity as discussed in the cases above. Individuals are provided with a powerful tool from the Principle of State Liability since their National Courts to protect the enforcement of their rights under Union Law. In the Kobler v Austria case, the decision made it more powerful. Whereas, in Francovich case law on state liability, it shows that there may be many obstacles to overcome in setting up a strong claim. To accomplish in a claim for damages, it is important for the applicant to build the law violation was planned to discuss the rights on individuals and that breach is sufficiently serious. The breach is most likely to be sufficient in cases of non-implementation of directives as in Francovich in which there is no doubt about the nature of the Union obligation . The breach can effectively be found to be excusable where the Union obligation allegedly breached is barely clear. This is a disadvantage on the capability of the principle to provide a direct solution or a direct enforcement mechanism in every situation. However, the establishment of State liability was a symbolic moment in the constitution as it weakened the principle created in legal systems of many Member States, that the state refuses to take liability for legislative action. At a very efficient level, the introduction of the principle highlights that in the field of Union (If not Union) law, Member states play a subordinate role.