The Right to Damages in European Law
All legal systems provide for a form of action for non-contractual liability. This is the first book to present an in-depth discussion of the right of individuals to receive damages in European law. Analyzing relevant ECJ cases, the authors detail the substantive and procedural criteria that need to be satisfied in order for an individual to succeed in a claim for damages against Community institutions under Article 288 EC or against a defaulting Member State under the court-created Francovich principle.
The book investigates the following factors and more:
- the court-developed principles of direct effect, supremacy, and indirect effect;
- State liability as an ‘inherent principle’ of European law;
- conditions of State liability;
- cases where liability is ‘automatically established’;
- extent of reparation;
- who may bring a claim under Article 288(2);
- against whom an action may be brought; and
- distinction between administrative and legislative acts.
- convergence between State and Community actions in damages.
The Right to Damages in European Law will be welcomed not only for its committed entry into an important area of European law that has not heretofore been treated in appreciable depth, but also for its clear and detailed analysis of the key issues facing students and practitioners when confronted with an issue concerning either State or Community liability.
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I. The Foundations of State Liability in European Law. 1. The Enforcement of EU Rights. 2. Liability before Francovich. 3. The Principle of State Liability. 4. The Clarification of the State Liability Principle in Brasserie du Pêcheur/Factortame. 5. A Final Comment on the Foundations of the Principle of State Liability.
II. Substantive Elements of State Liability: Conditions of State Liability. 1. Conferral of Individual Rights. 2. Sufficiently Serious Breach. 3. Establishing a ‘Sufficiently Serious’ Breach. 4. A Final Comment on the Notion of Serious Breach. 5. Causation. 6. State Liability and National Procedural Law. 7. The Universality of Liability Against the State. 8. Procedural Rules Strictu Sensu.
III. Non-contractual Liability in Damages: Article 288(2) EC. 1. Exploring Non-contractual Liability. 2. Admissibility under Article 288(2) EC. 3. Substantive Rules under Article 288(2) EC. 4. The Judgment in Bergaderm. 5. Community Liability post-Bergaderm. 6. Liability for Lawful Acts. 7. Causation. 8. Damages. 9. Conclusion.
IV. Article 288(2) EC: The Appropriate Forum and Concurrent Liability. 1. The Exhaustion of National Remedies. 2. Restitution. 3. Unlawful Failure to Act. 4. Tort. 5. Ancillary Damage. 6. Failure of Supervision. 7. Member State Recovery. 8. Conclusion.