Table of Contents

Theory and Practice of Harmonisation

Theory and Practice of Harmonisation

Edited by Mads Andenas and Camilla Baasch Andersen

Harmonised and uniform international laws are now being spread across different jurisdictions and fields of law, bringing with them an increasing body of scholarship on practical problems and theoretical dimensions. This comprehensive and insightful book focuses on the contributions to the development and understanding of the critical theory of harmonisation.

Chapter 7: Francovich Liability for Breach of European Union Law

Gerrit Betlem

Subjects: asian studies, asian law, law - academic, asian law, european law

Extract

Gerrit Betlem* UN PEU D’HISTOIRE After a brief historical introduction, this chapter will argue the case for extending the liability of the European Community and its Member States for breach of Community law to breach of European Union law. A number of developments and analogies will be explored – liability for lawful acts, liability of EFTA Member States for breach of EEA law – and their potential as building blocks for the recognition of such an extended EU liability regime will be assessed. Then there is an examination of the current unavailability of direct damages claims before the Community Courts laid down in Articles 35 and 41 TEU and confirmed by the CFI and ECJ in the Gestoras and Segi judgments, as well as the overhaul of this position by the Treaty of Lisbon and the potential relevance of the EU Charter of Fundamental Rights. The rules governing non-contractual liability of Member States of the European Union may be divided in chronological terms into before and after 1991, the year the ECJ handed down one of its most seminal cases: Francovich.1 Before that case, the availability of damages claims against Member States where they were in breach of Community law was discussed in the literature and considered indirectly in the Court’s case law e.g. in the context of infringement actions.2 For many years, it was unclear what legal system should decide not only the actual liability requirements but even whether there should be * Formerly of University of Southampton, UK (Deceased). This article...

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information