European Union Law ( EU Law) – State liability ( Discretion )
It will be harder to establish that a breach happened, much less that it was a significant infringement, where a Member State has considerable discretion under EU law. For instance, the claimant, a German road haulage company, claimed in Schmidberger v. Austria (Case C-112/00)  ECR I- 5659 that the Austrian government had significantly violated Articles 34 and/or 35 TFEU by approving a road closure to facilitate an environmental demonstration. The European Court of Justice (ECJ) rejected the claim, noting that the Austrian government needed to be given a "wide margin of discretion" due to the need to balance opposing (if not incompatible) interests: the need to safeguard the protestors' fundamental rights to exercise their right to free speech (on the one hand) and the claimants' economic rights to import and export goods across international borders (on the other hand) (on the other). The Court determined that:
The national authorities were therefore rationally authorized to draw the conclusion that the legitimate goal pursued by that demonstration could not be reached by means less restrictive of trade, given the wide discretion that must be accorded to them in the subject. As a result, it cannot be claimed that Austrian authorities violated [EU law] to the point where they are liable.
On the other hand, a lack of discretion makes it far more likely that the breach was sufficiently serious. For instance, the lack of discretion made the UK's violation of Article 35 TFEU in Hedley Lomas (Case C-5/94)  ECR I-2553 appear serious. The Court declared in that instance (emphasis added):
The simple violation of [EU law] may be sufficient to demonstrate the presence of a sufficiently significant breach "where, at the time it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion."
Case C-5/94 - Hedley Lomas  ECR I–2553 The UK's Ministry of Agriculture, Fisheries and Food (MAFF) consistently refused to grant licenses for the transport of live animals destined for slaughter to Spain between April 1990 and January 1993. This was done because the MAFF was convinced that several slaughterhouses in Spain were not in compliance with an EU directive on animal welfare regarding the stunning of animals prior to slaughter, either because they lacked the necessary equipment or because the equipment was not used properly or at all.
The MAFF believed that the degree of non-compliance with the directive justified a general restriction on export licenses, despite the fact that it lacked sufficient facts regarding the general situation in Spanish slaughterhouses. A British company named Hedley Lomas was denied an export license for live sheep in 1992, despite the fact that the company had knowledge that the specific butcher where the sheep were destined complied with all applicable animal welfare regulations. Hedley Lomas filed a lawsuit, claiming that the license's denial violated Article 35 of the Treaty on European Union. According to MAFF, it was justified by the protection of animal health in accordance with Article 36 TFEU. The ECJ determined that when harmonising directives were already in place and required to accomplish the same goal, recourse to Article 36 TFEU was not feasible. To conduct inspections in each other's territories, Member States required to have mutual trust. As a result, the MAFF's actions represented a grave violation of Article 35 TFEU.
In the case of Rechberger & Others v. Austria, the decision was similar (1999). The implementation date of Directive 90/134 (the Package Travel Directive), notably Article 7, had been unilaterally postponed in this case by the Austrian government, which is never permissible. The claimants reportedly suffered financial damage as a result. The lack of discretion was the primary factor in the ECJ's conclusion that the breach was sufficiently serious:
Austria has no option over when the provisions of Article 7 would become enforceable under its own laws. As a result, the restriction on protection mandated by Article 7 is obviously at odds with the requirements of the directive and so represents a sufficiently grave violation of [EU law].
A (lack of) discretion is frequently correlated with how clearly the regulation was broken. For instance, the Sixth VAT Directive, a regulation of EU law that was violated in Stockholm Lindöpark v. Sweden (2001), was expressly stated (indicating a major violation). Furthermore, the Swedish government lacked discretion because the regulation was so clearly broken, demonstrating how seriously it was broken. According to the Court, "[Sweden] was not in a position to make any legislative choices" (emphasis added) "Given the unambiguous wording of the Sixth Directive."
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