State liability Definition

GLOSSARY

What does State liability mean?

State liability is a Union doctrine which allows an individual to claim damages from a Member State for non-compliance with Union law.

State liability initially emerged as a remedy to overcome the drawbacks which resulted from the denial of horizontal direct effect of directives. The CJEU established state liability in its Francovich judgement, and also laid down the conditions for its application as follows: (i) There should be a Union act intended to grant rights to individuals; (ii) the content of those rights must be identifiable; (iii) there should be a causal link between the loss suffered by an individual and a breach by a member state. The Court, later, restricted the application of the doctrine of state liability by confining it to sufficiently serious breaches (Brasserie du Pêcheur). On the other hand, the application of the doctrine has been extended to breaches of Union law by national courts (Köbler).

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Remedies for breach of EU law

In addition to the means of enforcement of EU law available to the EU institutions under the EU infringement procedure, including the referral to the Court of Justice of the European Union, there are some principles, developed by the CJEU, to enforce EU law at national level. That is to say, there are remedies available to individuals when they face breaches of compliance with EU law. Those principles, which form part of the so-called judicial enforcement of EU law, are:•direct effect•indirect effect•state liabilityThe development of these principles took effect in the context of the preliminary ruling, which is a process under which Member States’ national courts co-operate and collaborate (or simply talk) with the CJEU in order to achieve a harmonized interpretation of EU law. For further reading, see Practice Note: References to the Court of Justice of the European Union—the system of preliminary rulings.Whenever individuals are affected by non-compliance with EU law provisions, they may resort to their national courts to seek enforcement of the rights conferred upon them...

State conduct and intervention—liability of state and public bodies under EU law

State intervention in the economy may interact with EU Treaty obligations, most notably the duty of loyalty under Article 4(3) TEU and Article 106 TFEU. For example, the state may incur liability under Article 4(3) TEU or Article 106(1) TFEU where its actions result in, or are likely to lead to, an infringement by an undertaking of the competition rules contained in Article 101 or 102 TFEU.Article 106(2) TFEU contains a limited exception from the TFEU rules in favour of undertakings entrusted with the operation of services of general economic interest (SGEI) or which have the character of a revenue-producing monopoly.There are also situations where the public body may itself be held to be engaging in economic activity such that it is a relevant ‘undertaking’ for the purposes of competition law.State intervention in the economy and liberalisationThe ownership and delivery of public services such as energy, postal services, telecommunications and transport have undergone significant structural change and the European Commission (Commission) has been instrumental in opening up these markets to...

Discover our 18 Practice Notes on State liability

Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause chambers’ discrimination of barrister (Bailey v Stonewall Equality Ltd)

Employment analysis: An employment tribunal did not err in rejecting a claim by a barrister who holds gender critical beliefs that Stonewall, an LGBT campaign charity, caused or induced her chambers to discriminate against her on the grounds of her protected belief, contrary to section 111 of the Equality Act 2010. The tribunal’s finding that the charity’s complaint was a ‘protest’, without any specific aim in mind except perhaps a public denial of the chambers’s association with the barrister’s views and contained no element of threat, did not satisfy a finding of inducing or causing an act of discrimination, according to the EAT.

Public Law case law quarterly—Q1 2024

Public Law analysis: The Public Law case law quarterly provides details and analysis of notable judgments collated by the Lexis+® Public Law team each quarter. Highlights in this edition include a Court of Appeal judgment on the compatibility of redaction and the duty of candour in judicial review proceedings, a Scottish ruling on the power of the courts to decline to give effect to a statutory provision and a key public procurement decision on the meaning of ‘sufficiently serious’.

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GLOSSARY