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Mustafa Mansour

In Francovich,[1] the European Court of Justice (ECJ) set out the conditions of state liability in the case of non-transposition of directives. First, the directive must confer rights on individuals; second, it must be possible to determine the content of those rights from the provisions of the directive; and third, there must be a causal link between the breach of the state’s obligation and the damage suffered.[2] While the approach in Francovich was hailed as a great improvement in state liability, it did not explicitly refer to the serious breach test. In doing so, it did not tackle the question of what type of breach would lead to a “sufficiently serious” breach.


The case of Brasserie[3] approved the opinion of the Advocate General (AG) in the earlier case of Mulder[4] and amended the second leg of the Francovich conditions to “the breach must be sufficiently serious”. A “sufficiently serious breach” is defined as where a member state “manifestly and gravely disregarded the limits on its discretion”.[5] Unfortunately, the various judgements are far from being at one as to when the serious breach test applies and exactly how it fits in with the existing Francovich conditions.


Firstly, the British Telecommunications[6] (BT) case, which was decided shortly after Brasserie confirmed the sufficiently serious breach condition. The court had used the clarity and precision rule listed in paragraph 56 to establish the fact that the United Kingdom was not liable for damages. The court sought to reinforce the newly implemented condition in Brasserie and in turn, clarified the importance of the new condition in determining liability for a breach of community law.


While on the surface, BT seems to endorse the opinion in Brasserie, it also adds some confusion to the serious breach condition. If cases such as Francovich involving non-transposition of a directive involve no discretion, the same should be true of defective transposition. Just because a Member State is not wildly at fault in its implementation does not mean that it has the discretion to get it wrong.[7] The court unfortunately side-stepped the question, ruling that the serious breach condition also applied in the case of incorrect transposition. The case of ex parte Gallagher,[8] however, addressed the question and ruled that “the legislative discretion enjoyed by Member States [in relation to the directive] was not very great; but nor was the legislative discretion enjoyed in relation to the Directive” in BT. The court of appeal therefore felt duty bound to apply the serious breach test as in BT. However, the assumption that there is any discretion in cases of incorrect transposition is a questionable one.[9]


Where it has been argued that under paragraph 56 of Brasserie, the conditions are wide enough to embrace the different circumstances in which Member States can incur liability depending on the nature of the breach,[10] Brasserie arguably did not cover situations where no discretion was present. Had the court concluded that Germany enjoyed no discretion (and therefore it was in serious breach), its reasoning would have come unstuck because that would suggest that the serious breach test should not have been introduced in the first place.[11] This is the reason why some have argued that the cases of Hedley Lomas[12] and Dillenkofer[13] therefore clarified the applicability of the serious breach condition. The cases clarified whether the sufficiently serious breach test applies to cases of little or no discretion.


Paragraph 56 in Brasserie was designed to cover a range of infringements possible[14] for which public authorities might be liable for a breach of community law. It has therefore been argued that Hedley and Dillenkofer laid down a “broad and dangerous principle which was neither necessary or helpful to the case”.[15] Brasserie did not make it explicitly clear if a “mere infringement” could give rise to liability, therefore Hedley stated that it did, provided that the Member State was not “called upon to make any legislative choices and had only considerably reduced, or even no, discretion”.[16]


The “mere infringements” concept was initially introduced by Van Gerven shortly before Hedley and Dillenkofer and he defined it as a “clear and inexcusable violation of a precise obligation of community law”.[17] This was contrasted with a breach committed “in the exercise of wide discretionary powers”, where the state should only be liable where it has shown “a manifest and grave disregard on the limits of its powers”. This distinction between the two principles represented the extremes of a “sliding scale”.[18]


This principle was echoed in Hedley and Dillenkofer in paragraphs 28 and 25 respectively, however the ECJ did not define the “mere infringements” concept as Van Gerven did. The ECJ’s conclusion in these two cases was said to have left the meaning and scope of the application of the “sufficiently serious breach” condition in some confusion and it could be seen to introduce a principle of strict liability. In introducing strict liability, it has strayed away from the earlier case of BT, which had confirmed that an element of fault has to be present. In turn, has strayed away from the Brasserie definition of a “sufficiently serious breach” and has left some confusion as to the definition and application to the principle.


Written by Mustafa Mansour