Liability of Member States in Europe

Member States’ Liability for Legal Acts Or Failure To Act

This form of liability is defined by three criteria which are largely the same as those applying to the Union in a similar situation.

Context of Liability Of Member States in the European Union

(1) The aim of the Union provision which has been infringed must be to grant rights to the individual.

(2) The infringement must be sufficiently serious, i.e. a Member State must clearly have exceeded the limits of its discretionary powers to a considerable degree. This must be decided on by the national courts, which have sole responsibility for ascertaining the facts and assessing the seriousness of the infringements of Union law. The Court of Justice’s judgment nevertheless offers the national courts a number of basic guidelines:

More about Liability Of Member States in the European Union

‘The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption of retention of national measures or practices contrary to Community law. On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted an infringement.’

Other Aspects

(3) A direct causal link must exist between the infringement of the obligation on the Member State and the harm suffered by the injured party. It is not necessary to demonstrate fault (intent or negligence) in addition to establishing that a sufficiently serious infringement of Union law has occurred.