Remedies, State Liability and Effective Judicial Protection
Remedies, State liability and effective judicial protection
This domain tests how EU law is enforced before national courts and when a Member State must compensate loss. The focus is procedural autonomy, equivalence and effectiveness, and the Francovich conditions.
Core rules
- National procedural autonomy is limited by equivalence and effectiveness (Rewe, Simmenthal).
- Effective judicial protection requires remedies sufficient to protect EU rights, including interim relief where necessary (Factortame).
- State liability: Francovich and Brasserie du Pêcheur require a sufficiently serious breach, damage and a causal link. The breach must be manifest and grave; factors include the clarity of the rule and the discretion available.
- EU non-contractual liability: Art 340 TFEU requires unlawful conduct, damage and causation; legislative acts require a sufficiently serious breach.
- National time limits and standing rules cannot make EU rights practically impossible or excessively difficult.
Worked example
A Member State fails to transpose a directive protecting employees, and an employee loses wages. The directive may not have horizontal direct effect against the private employer. The employee sues the State. The court asks whether the breach was sufficiently serious: the directive was clear, the deadline passed and no justification was offered. Damage and causation are shown. State liability follows, subject to national rules respecting equivalence and effectiveness.
Traps
State liability is not available for every breach; the breach must be sufficiently serious. Direct effect and damages are alternative routes with different tests. Interim relief is not automatic; it requires necessity and proportionality. Do not confuse Art 340 EU liability with Member State liability.