Member State Liability vs. National Procedural Autonomy: What Rules for Judicial Breach of EU Law?
German Law Journal (2010)
20 Pages Posted: 12 Oct 2013
Date Written: November 21, 2009
In Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic, the European Court of Justice (ECJ) ruled that Community law precludes the existence of two types of national rules that limit State liability: (1) rules that exclude liability for damages due to an infringement of Community law that arises out of an interpretation of legal provisions or an assessment of facts or evidence carried out by a court adjudicating at last instance, or (2) those limiting liability solely to cases of intentional fault and serious misconduct on the part of the court, if such a limitation were to lead to exclusion of the liability of the Member State in other cases where a manifest infringement of the applicable law was committed.
This article, while recognizing that the ruling in Traghetti del Mediterraneo is in line with previous case‐law on Member States’ liability for breach of EU law, casts some doubts as to whether such an invasion of an area traditionally regulated by national law is in fact desirable. It questions what the foundations are of the procedural rights conferred by European law, and, in doing so, the extent to which European law can tamper with the constitutional balance of a state. Finally, it provides some tentative solutions to the dilemma faced by Italian law following the delivery of the Traghetti del Mediterraneo judgement.
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