The EU, the Member States and Damages Liability

It is instructive to return to fundamentals when thinking about EU damages liability and state liability in damages for breach of EU law. The evolution of the case law is especially interesting given that the Court was working from something akin to a tabula rasa in both instances. Article 215 EEC gave the ECJ a broad discretion to fashion Community non-contractual liability in accord with the general principles common to the laws of the Member States, and the text has remained unchanged in substantive terms. The scope for crafting the contours of state liability in damages was even greater, given that the Treaty was silent on this issue, the corollary being that it fell to the Court to articulate the rationale for such liability and then specify the conditions thereof. The development of the case law in both areas served, therefore, as a laboratory for the judicial explication of what the principles of delictual responsibility should be in an emergent legal order. This chapter examines the jurisprudence and draws out the key features that have shaped the twin bodies of legal doctrine. The discussion begins with EU damages liability. It points to the symbiotic connection between reasoning and result in the case law. The remainder of the section elaborates the key features that have fashioned this body of law, which are the disaggregation of annulment and damages; the disaggregation of discretionary and non-discretionary acts; the normative choice that finds expression in the definition of superior rule of law for protection of the individual; the normative choice inherent in the meaning given to flagrant violation of Community law; and the disaggregation and normative choice in dealing with damages flowing from unlawful and lawful action. The focus then shifts to state liability in damages. The discussion begins by reiterating the symbiotic connection between reasoning and result in this body of law. The central precepts that have framed this body of law are then examined. These are the linkage between state liability in damages and EU damages liability; the disaggregation between damages and direct effect; the unitary conception of the state that underpins the ascription of state liability; the increased sophistication as to the conditions for state liability; and the malleable divide between interpretation and application that has shaped the division of responsibility between the CJEU and national courts in applying the legal criteria in this area.