European Union Law - State Liability - Participation of an EU institution
Although it is rarely mentioned, the final element can be significant. The European Commission's involvement (or lack thereof) was cited in BT (1996) as one of the arguments against the allegation. The UK government had provided the Commission a draft of its implementing legislation, but there was no response. The implementing legislation could have been changed and the legal action completely averted had the Commission responded and pointed out the error.
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