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Member State Liability in Europe and the United States

Daniel J. Meltzer

Harvard Law School

International Journal of Constitutional Law, Vol. 4, pp. 39-83, 2006
Harvard Public Law Working Paper No. 127

The European Community (EC) and the United States have contrasting approaches to the place of member state liability to private parties as a remedy for the violation of the law of the union. The EC recognizes a general doctrine of member state liability in damages for violations of EC law, while American states generally possess sovereign immunity from private damage claims for violations of federal law. This contrast is paradoxical, as one would expect the U.S., a better established and more powerful federal polity, to have fewer concerns about the imposition of state liability than the less powerful and more fragile EC.

A cluster of differences between the EC and the U.S. helps to account for this paradox. These differences include the factual circumstances of their respective seminal cases; the historical settings in which they arose; civil law systems' greater hospitality to governmental liability as compared to common law systems; stronger political control over judicial appointments in the U.S.; and EC member states' stronger safeguards against unwelcome federal legislation. Collectively, these differences help to explain why state liability was deemed more important to the center and less threatening to the member states in the European Community than in the U.S.

Number of Pages in PDF File: 68

Keywords: EC, EU, State Liability, Sovereign Immunity, Federalism, Constitutional Law

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Date posted: November 23, 2005  

Suggested Citation

Meltzer, Daniel J., Member State Liability in Europe and the United States. International Journal of Constitutional Law, Vol. 4, pp. 39-83, 2006; Harvard Public Law Working Paper No. 127. Available at SSRN: https://ssrn.com/abstract=850364

Contact Information

Daniel J. Meltzer (Contact Author)
Harvard Law School ( email )
1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-4659 (Phone)
617-496-4865 (Fax)

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