The liability in Tort for the European Community and Member state liability : common basis and conditions?

Abstract

The European Court of Justice generally aligns the system of Member State liability for breaches of Community law with the conditions governing the non-contractual liability incurred by the Community under Article 288(2) of the EC treaty. It is worth examining, however, whether the EO really interprets state liability by strict analogy to Article 288(2) or whether the latter is used simply as a "rough" reference framework for the former. The aim of this thesis is to test the appropriateness and useful scope of the linkage between Article 288(2) and the Francovich principle and, ultimately, to analyse the extent to which Community liability may be compared or assimilated to Member State liability for breaches of EC law. An examination of the conditions applied for Community liability as compared to the conditions applied for Member State liability for breach of EC law, results in the conclusion that although the same conditions apply on paper, in substance the Member State is often subject to a stricter form of liability than the Community institutions. In the light of the EO's propensity to draw "inspiration" from national systems of the Community, its general principles frequently resemble doctrines applied in those systems. The borrowing has, however, been sporadic and an ad hoe approach is often applied. This means that neither does the basis of the Community liability regime nor that of Member State liability, concur. Indeed, it is argued, because the Court of Justice has been quite selective about endorsing principles that are widely observed in European legal systems, the term "general principles of Community law", might be a preferable term to signify those principles that the Court does recognise. Finally, the approach of cross-fertilisation and constant comparison, might herald a more liberal approach to Article 288(2) of the EC treaty as the EO may be under pressure from litigants to place its case law on non-contractual liability of the Community on the same footing as that relating to the liability of the Member States.