The doctrine of state liability
The two main aspects that EU law deals with are; the possibility that the member state is contravening the regulations that regulate interactions with other member states, such as tariffs; and whether a member state is contravening the laws in relation to individuals such as free movement of persons and deportation.
This has caused much concern whether this means that in fact member states are not sovereign states . However the Court of Justice has introduced the proportionality principle that allows the member state some leeway within the interpretation of EU laws as long as it is in respect to the protection of national culture. There is a problem with the current system of EU law because the law has not created an easy procedure for the individual to petition the ECJ, i.e. one must first exhaust the domestic courts which results in a very long winded and expensive venture for the individual to enforce right. Even if the individual does go to the ECJ it can only get enforcement however this law is only directly applicable to the government and domestic laws and indirectly applicable to government organisations . This restriction within EU law therefore reduces the impact of European law within the UK.
Therefore the main limitation to the power of EU law is that it only directly applies to Member-States or organizations that are monitored by the government of the Member-States; therefore stressing the lack of democracy for the individual citizen within the EU. It is argued that state liability limits the amount that citizen’s rights are overrun by the state; however this is not the same as horizontal rights, which one could argue is necessary in the era of human rights. Then it will consider the doctrine of state liability. Finally, the discussion will turn to alternative methods and recent case law that is aimed at extending an individual’s rights to petition the EU when an EU right is breached.
The Foster v British Gas case extended the definition of what a state consists of to the organizations and organs of the state, which includes state regulated monopolies. Yet the case of Marshall stemmed the possibility that there may be the possibility of horizontal direct effect, i.e. the ability for individuals to enforce their EU rights directly:
There is an argument that the doctrine of state liability protects the individual citizen; however there are problems because this is a highly institutionalized set of law. This exploration will consider the doctrine of state liability and then discuss the problems with this doctrine in reference to personal concern and petitioning the EU.
The doctrine of state liability was established under Articles 226 to 228 was defined in the Francovich Case . These articles illustrate the limitations of the citizen accessing justice whereby article 226 allows the commission to bring an action against a member state for not fulfilling its obligations. Article 227 along the same line of argument allows another member state to bring an action against a member state for not fulfilling its obligations. Finally article 228 forces the state to take all steps to comply with the ECJ’s decision in respect to the possible breach of obligation. These three articles provide no provisions for the citizen to bring an action, just the appropriate part of the EU institutional structure and other member states, which stresses the lack of focus on individual citizens in the EU legal structure and impedes access to justice for the individual citizen. Also article 234 governs the jurisdiction of the court which surrounds the interpretation and validity of the legal question and EU law in the case. It is this approach that it has been argued protects the rights of EU citizens:
State liability rules did not only ensure and strengthen individuals’ rights; they also closed a long-existing gap in the area of efficient sanctioning of breaches of Community law.
Francovich cemented the notion of state liability by enforcing payment by state’s that allowed private companies to breach of the EU citizen’s rights, which used the rights under Articles 226 to 228 to cement this payment; as well as backing this argument up with Article 10:
Member States are required to take all appropriate measures … to ensure fulfilment of their obligation under Community law, [i.a.] …to nullify the unlawful consequences of a breach of Community law.
The case of Dillenkofer held that even a mere infringement was a breach and the state was order to pay reparation to the offended individuals:
There is a problem with the current system of EU law because the law is not create an easy procedure for the individual to petition the ECJ, i.e. one must first exhaust the domestic courts which results in a very long winded and expensive venture for the individual to enforce right. Therefore even if an individual wanted to bring a case concerning state liability it is very difficult because the avenue is thwarted by the EU system of law. The doctrine of direct effect has consumed the system of law and is overly concerned with states as the actors that enforce rights. Also even if the individual does go to the ECJ it can only get enforcement however this law is only directly applicable to the government and domestic law and indirectly applicable to government organisations. This restriction within EU law therefore reduces the impact of European law within the UK. Therefore the main limitation to the power of EU law is that it only directly applies to Member-States or organizations that are monitored by the government of the Member-States; therefore stressing the lack of democracy for the individual citizen within the EU. In order to ensure that rights are expanded from just the ambit of the EU states it is necessary that there is reform in respect to citizens. However this does not mean that the EU does not respect these rights and aids the rights of individuals in domestic court. The following discussion will illustrate how access to justice is imperative in respecting the basic rights of individuals, which the current system of law is breaching in the EU at two levels, i.e. the domestic courts are not allowing access to justice and the EU enforcing the need to exhaust the domestic legal system, as well as the only cases that can be brought in front of the EU are those connected to the government.
Tags: case law, court of justice, democracy, deportation, domestic courts, sovereign states
