| Abstract [eng] |
European Union (EU) Member States liability was established and is still developing in European Court of Justice (ECJ) case law. It was introduced in Francovich, thus strengthening EU law autonomous and superior legal order, sanctioning Member States infringements of their obligations and enhancing Community rights of individuals. Also specific and different from all other types of liability prerequisites were determinated by ECJ in this case. However, in Brasserie du Pêcheur a qualified criteria was added. So EU law provides a right to reparation and Member State may be held liable when three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties. It seems that first condition can not cause any problems to potential “Francovich” claim applicants and courts applying it. There was only one case where the Court has ruled that the rule of law in question did not confer an enforceable right to individuals. However, second condition is more complicated. For a Member State to incur liability it is not enough merely to identify a breach of EU law attributable to it. The breach must be “sufficiently serious”. In accordance with ECJ case law, “sufficiently serious” breach where Member State has wide discretion to make legislative choices is where it, in the exercise of its legislative powers, manifestly and gravely disregards the limits on its powers, but where, at the time when it committed the infringement, it in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach. Finally, as regards third condition, ECJ in many cases stated that it is for the national court to verify whether there is a direct causal link between the Member State's breach of its obligation and the damage suffered by the individual, but in several occasions it also analysed this issue and applied the doctrine of a conditio sine qua non. Additionally, it was concerned about other elements of a Member State liability. Although it is obvious subject of such liability, it was not clear for whose actions State can be held liable. In its case law ECJ found that there is no matter the breach stems from acts of the national legislature, executive or in certain conditions judiciary. By the way, ECJ denied possibility making a Member State liability conditional upon the existence of fault. |
