European Union Law ( EU Law) - The prerequisites for state liability
Particularly, Francovich & Bonifaci (1991) were troubled by the Italian government's inability to carry out a Directive. States are required to put Directives into effect, as stated in Article 4(3) TEU and Article 288 TFEU. What the position may be in reference to subsequent violations and the degree of culpability necessary to prove liability, however, remained two unresolved problems. In Brasserie du Pêcheur SA v. Germany and Factortame III (Cases C-46 and 48/93) [1996] ECR I-1029, the ECJ discussed these concerns. The Court made it clear that state liability was a general principle, not just limited to a failure to implement Directives, and that three requirements had to be met: the rule of EU law violated had to have been intended to grant rights to individuals; the violation had to be sufficiently serious; and there had to be a direct causal relationship between the violation of the state's obligation and the harm suffered by the parties who were injured. The claimant has the onus of proving each of the three requirements. Claims involving state liability are handled before the defendant state's national court. Cases C-46 and C-48/93, Brasserie du Pêcheur v. Germany; Factortame III [1996] ECR I–1029 A French brewery named Brasserie filed a test case against the German government in the first instance, requesting compensation for losses it claimed to have experienced as a result of being unable to sell beer in Germany between 1981 and 1987. Following the ruling in Commission v. Germany (Beer Purity) (Case 178/84), the action was taken. [1987] ECR 1227, which held that the Reinheitsgebot of 1516 and more especially the 1952 Biersteuergesetz, Germany's beer purity regulation, violated Article 34 of the Treaty on European Union. The regulation stipulated, among other things, that only malted barley, hops, yeast, and water may be used to make "bottom-fermented" beers. It was said that this hindered beer trade between Germany and France, where somewhat laxer regulations were in effect. The "Anglo-Spanish" fishing fleet, which included Factortame Ltd and a number of other Spanish-owned but British-registered fishing enterprises, filed a lawsuit for damages against the UK government in the second instance. This came after the ECJ determined that the UK's Merchant Shipping Act 1988 violated the firms' directly effective rights under EU law, including their freedom of establishment under Article 49 TFEU, in Factortame II (Case C-221/89) [1991] ECR I-3905. It was claimed that the Act caused the corporations significant damages by preventing them from using their fishing rights in UK territorial seas. The three requirements for establishing state liability were established by the ECJ (set out above). Regarding requirement (1), the Court decided that both Articles 34 and 49 TFEU were meant to grant people rights. According to the Court, whereas condition (3) was solely a matter for the national courts, condition (2) was generally a matter for national courts. National regulations on recovering damages (remoteness, mitigation, etc.) would be used to determine the size of the compensation award (in the event that state guilt was proven). In order to apply the conditions (2) and, the two cases were sent
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