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- Publisher
- Kluwer Law International
- Copyright
- Copyright © Kluwer Law International
- ISSN
- 1354-3725
- Publisher site
- See Article on Publisher Site
Abstract
EUROPEAN PUBLIC LAW R. Alonso Garcia, La responsabilidad de 10s estados rniernbros por infraccion del derecho cornunitario (Fundacion Universidad Empress/ Civitas, Madrid, 1997) 114 pp, ISBN 84-470-0903-3 pb 2200 Ptas The principle of the liability of a Member State for loss or damage caused to individuals owing to infringement of Community law had already been stated by the ECJ in Francovich (C-6/90 and C-9/90) in 1991. However, in 1996 the Court further developed this principle by defining the categories and techniques for its application through a chain of preliminary rulings (Brasserie du Picheur v. Germany and R. v. Secretary of State for Transport, exparte Factortame Ltd (C-46/93 and C-48/93); R. v. H M Treasury exparte British Telecommunicationsplc (C-392193); R. v. Ministry of Agriculture, Fisheries and Food, e x parte Hedley Lomas (Ireland) (C-5/94); Dillenkoffer v. Germany (C- 178194, C-179194 and C- 188-190194); and Denkavit (C283194, C-291194 and C-292194)). This principle has since been considered sufficiently consolidated to be added to the principles of supremacy, direct effect and legal certainty, in the role of regulating the relationships between Community law and national laws. In this context, this work by Professor Alonso Garcia, of Complutense University of Madrid, is noteworthy not only because it analyses and comments on each case in a comparative and chronological manner but also because it makes an effort to summarize the present state of the case law, structuring the complex regime built upon the basis of specific cases with an aim of universality. This liability system has three distinctive features. First, its judge-made or praetorian nature, as it is built upon the basis of the principles of the Community legal system in order to enforce effectively Community law and the protection of the conferred rights. Secondly, it is considered a minimum standard in the sense that if the Member State has a liability system more favourable to its citizens, this will be the one applied. Thirdly, the non-contractual liability basis of the Community institutions' liability system and the various bases of the Member States have been unified, 'an example of the fact that the community integration process is developed by the permanent interaction of legal systems'. The author makes a thorough analysis of the substantive conditions for incurring state liability. Besides comments on the fact that the Community provision infringed must be intended to confer rights upon individuals, and that there must be a causal link between the breach of a state's obligation and the damage suffered, his analysis is particularly acute and interesting as regards the requirements for the breach to be considered as sufficiently serious. This requirement depends upon the margin of discretion of the Member States: if this margin does not exist (when dealing with clear, precise and unconditional rules), the mere breach is directly considered as a sufficient serious breach. This seems to establish a strict liability system although, as the author points out, the system is progressively becoming subjective as the ECJ is now taking into account issues such as the lack of interpretation difficulties in order to assess automatically whether a BOOK REVIEWS given breach is sufficiently serious or not. This means that, as a general rule, when a preliminary ruling about the infringed disposition is requested, and a reasonable doubt about its interpretation exists, the ECJ will tend to deny the liability of the state. On the other hand, if a margin of discretion exists (because there are discretionary elements in the Community rule or because it is obscure, imprecise or conditional), it will be necessary to apply a test, the nature of which was defined by the ECJ in Brasserie, the elements of which are: the clarity and precision of the rule breached; the scope 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 in the implementation of Community law was excusable or inexcusable; and, finally, whether the fact that the position taken by a Community institution may have contributed towards the omission, the adoption or maintenance of national measures or practices contrary to the Community law. Although the authority to determine whether the breach could be considered sufficiently serious to generate state liability lies in principle with the national courts (and only 'in principle', as the ECJ will intervene in certain circumstances), the author foresees a great flow of references for preliminary rulings in the near future, with the aim of clarifying the character of the breaches of EC law in order to verify whether they can be considered as 'sufficiently serious'. In short, the importance of this principle is emphasized by the author when he points out that 'we can predict a new stage in the process of European legal integration, characterized by the principle of liability which will play a key role in the performance of a system that had been centred so far on the principles of supremacy and direct effect of Community law'. Jesus Angel Fuentetaja Pastor UNED University, Madrid
Journal
European Public Law – Kluwer Law International
Published: Jun 1, 1998