STATE LIABILITY IN DAMAGES FOR VIOLATION OF EU LAW

State Liability In Damages For Violation Of EU Law

State Liability In Damages For Violation Of EU Law

Introduction

In Francovich and Bonifaci v. Italian Republic, the European Court of Justice (ECJ) ruled that Community law precludes the existence of national rules for State liability which (1) exclude liability for damages due to an infringement of Community law arising out of an interpretation of provisions of law or an assessment of facts or evidence carried out by a court adjudicating at last instance, or (2) limit such liability solely to cases of intentional fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State concerned in other cases where a manifest infringement of the applicable law was committed.

The pervasiveness of EU law: from setting objectives to dictating standards

Given the increasing level of political integration and the proliferation of legislation witnessed in the last 10 years of the European Union, it's natural that many of the obligations imposed by the Union do not arise from meticulously detailed legislation: as a matter of fact, that would be a daunting task requiring solutions that take into account a host of different social, cultural and economic conditions for each of the Member States, thereby necessarily hampering the efficiency of the legislative machine and slowing the pace of European integration.

A recent judgement of the ECJ, however, showed that the traditional interpretation of this argument, at least with regard to the liability of the State for the undertaking of their judges, was mistaken. The judgement does not imply a rejection of the principle of state sovereignty, which is still of the highest hierarchy in international law. It does, however, shed light on the scope for the application of such principle in the context of the European Union, clarifying that the limits set for national procedural autonomy also apply to the case of the regime established by national law concerning the responsibility of judges. More precisely, the court held the following:

Community law precludes national legislation which excludes State liability, in a general manner, for damage caused to individuals by an infringement of Community law attributable to a court adjudicating at last instance by reason of the fact that the infringement in question results from an interpretation of provisions of law or an assessment of facts or evidence carried out by that court.

Instinctively, an unsurprising reaction to this ruling is to question what is the legitimacy for European law to impose the application of such principles to national law. Doesn't the principle of national procedural autonomy preclude it from second-guessing the optimal rules to be embedded in a system to restrain judicial power?

Additionally, one can wonder whether these principles are in fact desirable not only from the point of view of enforcing EU law, but also from the perspective of maintaining a proper constitutional balance. The following paragraphs will address these questions in ...