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As the Court of Justice's decision in Brasserie du Pêcheur
demonstrates, there are a number of ways of conceptualizing the liability of
Member States for breaches of EU law. In that ruling, the Court drew on
principles of international law and on its own case law regarding the
non-contractual liability of the Community. Other authors have analogized
Member State liability to ordinary civil liability,36 to liability for administrative
misconduct37 or to the French no-fault
doctrine of égalité devant les charges publiques (equal
apportionment of public burdens).38
In fact, however, ordinary tort liability, administrative tort
liability, French no-fault liability, and liability under the international law
of State responsibility each differ from Member State liability in one or more
essential characteristics. And while Member State liability bears considerable
resemblance to the non-contractual liability of the Community, I am doubtful
that this observation advances things very much in our bid to understand the
nature of Member State liability; rather, it simply poses a new problem, that
of conceptualizing the Community's own liability.
In my view, State
liability in the European Union is most readily seen as a species of
constitutional tort liability. In this part of the paper, I first describe what
I believe to be the defining formal characteristics of EU Member State
liability, and then explain why these features reveal State liability in the EU
to be akin to liability for a constitutional tort.
My effort to define the essential characteristics of Member State
liability proceeds from the premise that liability is a legal relationship
between a payor and a payee. The relationship consists of three elements which
fully describe it: the identity of the payor, who is obliged to pay a
particular sum, the identity of the payee, who is entitled to receive the same
sum, and the reason for the payment. By "reason," I am not referring to the
normative justification for the payment - that is the concern of Part III of
the paper. For the time being, my task is purely descriptive. Accordingly, the
third element of the liability relationship refers to the factual conditions
which, as a matter of positive law, provide the principle on which the State is
obligated to pay damages and the claimant is entitled to receive them.
Applying this approach to the State liability in the EU, I claim that the
relevant relationship is fully described by reference to the three following
features:
43 The reason for the payment is a wrongful breach of rights protected by Community law, and the causation of damage.
43 The payor is the whole State, for the act of any State organ, whether legislative, administrative or judicial.
43 The payee is the injured party.
I will explain each of these elements in turn.
The first and most
complicated element is the reason for the payment. The general principle of EU
Member State liability was articulated by the Court in Francovich in the
following terms:
[I]t is a principle of Community law that the Member States are obliged to pay compensation for harm caused to individuals by breaches of Community law for which they can be held responsible.39
A few paragraphs later, the Court of Justice clarified what it meant by "breaches of Community law for which they can be held responsible." The circumstances of Francovich involved non-implementation of a directive, but the conditions spelled out by the Court of Justice have been generalized to cover violations of any category of Community norm:
The first of those conditions is that the result prescribed by the directive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, the third condition is the existence of a causal link between the breach of the state' s obligation and the loss and damage suffered by the injured parties.40
By combining the first and second parts of the Francovich test
into one, the reason for State liability under Francovich can be seen as
consisting of two conditions that must exist simultaneously. The first is the
requirement of a breach of rights conferred by Community law: all State
policies will work to the detriment of someone, but if the harm does not arise
from a breach of rights under Community law, the principle of liability
articulated in Francovich does not apply. The second condition is that
harm must be caused by the breach: though a Member State may commit numerous
breaches of Community law, only if harm is caused by the breach can liability
ensue under Francovich.41
In
Brasserie du PEAcheur, the Court of Justice reiterated these conditions,
and added the requirement of a sufficiently serious breach. This requirement
appears to be a fault criterion by another name. In trying to understand the
nature of the new requirement, it is important to note that the seriousness of
the breach is not assessed from the perspective of the individual: the issue is
not the seriousness of the injury suffered by the individual or whether an
individual right was violated. Questions relating to the impact of the Member
State's conduct on the individual are considered at other another stage, namely
in applying the original Francovich test. At the stage of determining
the seriousness of a breach of Community law, the focus is on the conduct of
the Member State and its relationship to the norm established by Community law.
Did the Member State deliberately violate the rule? If not, was its error
unreasonable and inexcusable? These questions, described as an inquiry into the
"seriousness of the breach" so as to differentiate them from fault criteria
contained in national law, nonetheless embody notions of intentional and
unintentional wrongdoing, or fault.
I conclude that the reason for
liability is the wrongful breach of individual rights conferred by Community
law, causing damage.
The second defining element of a liability rule is
the identity of the payor or, the party whose conduct can give rise to an
obligation to pay damages. Obviously, in the context of EU Member State
liability, the potential wrongdoer and payor is the State. Following
Brasserie du PEAcheur, moreover, it is clear that liability can attach
to the conduct of any State organ, whether legislative, administrative or
judicial.42 Moreover, in countries with a
federal structure, Member State liability can arise through the acts of federal
institutions or those of the political divisions.43
The final piece of the puzzle is the
identity of the party entitled to receive damages. In EU Member State
liability, the potential payees are those injured by the breach of rights.
Having articulated the defining features of EU Member State liability, I now turn to a review of the different ways of conceptualizing monetary claims against the State. The following familiar doctrinal categories have been alluded to by commentators on EU Member State liability:
43 ordinary
law of torts
43 administrative torts
43 international law of
State responsibility
In my view, none of these conceptualizations is completely satisfactory,
because none of them is congruent with the phenomenon under study. EU Member
State liability differs from each of the traditional models of liability in one
or more essential features.
The law of torts or, in civilian systems, the
law of civil delictual and quasi-delictual responsibility, is similar to EU
Member State liability in that both kinds of liability are based on wrongdoing
and causation, and both give the injured party a right to receive damages.
However, the potential payors or wrongdoers under the ordinary law of torts do
not normally include the State. Although the language of private tort law often
seeps into discussions of State liability, one does not find many legal systems
where States are treated as ordinary persons.44
Instead, State liability is dealt with in
most countries under special rules which come under the heading of
administrative law. This is the kind of liability to which EU Member State
liability is most often compared.45
Indeed, in the administrative liability regimes of some countries, one sees
conditions similar to those articulated by the Court of Justice in
Francovich and Brasserie du PEAcheur, for example that a mere
misinterpretation of the applicable legal norm will not occasion liability, and
the requirement that the norm that was violated have been intended to protect
an individual right.46 However, the
comparison is somewhat difficult, as one point on which most legal systems seem
to agree is one which distinguishes the domestic liability of public
authorities dramatically from EU Member State liability: in domestic systems,
there is normally no liability for legislative acts. Thus, administrative
liability is differentiated from EU Member State liability by the identity of
the potential wrongdoer and payor.
In France, the country which comes
closest to recognizing liability for legislative acts, the ability to obtain
compensation for legislative harm, under the doctrine of E9galitE9 devant
les charges publiques, is subject to the will of the legislator. There will
be no compensation if the law or its travaux prE9paratoires suggest a
legislative intent to preclude compensation.47
Moreover, liability under the French
doctrine of E9galitE9 differs in another fundamental respect from the
legal relationship that this paper seeks to explain. Specifically, establishing
a right to compensation under the E9galitE9 doctrine does not involve
showing that the State's conduct was wrongful or that it violated rights
protected by a superior order of law, but rather demonstrating that
compensation is required to avoid the imposition of a special and onerous
burden on the plaintiff.48 The reason for
compensation under the doctrine of E9galitE9 is therefore completely
different from the reason underlying State liability in the European Union.
Those authors who argue that EU Member State liability is a form of
administrative tort liability tend to characterize the acts of national
legislatures as being the equivalent of administrative acts, for the purposes
of Community law. For example, Green and Barav write that "the Community may be
characterized as a complex legislative machinery the executive branch of which
are the Member States."49 What these
authors are getting at, of course, is the important role that national
authorities play in implementing Community law, particularly through the
transposition of directives into national legislation and the application of
directly effective Community law by national courts.
However, one should
not infer, from the fact that the effectiveness of the Community legal system
depends on the cooperation of national authorities, a general conception of the
Community which reduces the Member States to the equivalent of an executive
branch. The better view is that, except possibly when they are implementing
Community law, the legislative, executive and judicial organs of the Member
States exercise autonomous power. Although the Member States have accepted
restrictions on their freedom of action - constraints which the Court of
Justice has described as limitations of their sovereignty50 - this does not transform all of their acts
into administrative acts. Therefore, it remains a distinction between EU Member
State liability and administrative tort liability that the potential wrongdoers
include not only the administrative organs of the State but also the
legislative and judicial.
Whereas whole-State liability is all but
non-existent in domestic law, it is a familiar principle of international
law,51 which thus provides a third
possible optic in which to view EU Member State liability. In fact, the Court
in Brasserie justified its holding by reference to international law
rather than the law of any of the Member States.52 However, classical international law does not
regard individuals as its subjects and, as a result, it provides a remedy not
for individuals but for States. When a breach of international law causes harm
to individuals, it is the State whose nationals were injured, and not the
individuals themselves, that is treated as the wronged party.53 Thus, the identity of the payee is different
under the international law of State responsibility than in the scheme of EU
Member State liability.
The fact that none of these traditional ways of
looking at liability succeeds in describing EU Member State liability does not
mean that these models cannot be useful as sources of theoretical inspiration.
It may well be that the same or a similar theory of justice underlies different
forms of liability. At the same time, if a model of liability can be identified
that is more congruent with the phenomenon of EU Member State liability, then
it seems more likely that the two kinds of liability draw on the same theory of
justice. In the following section, I argue that the most promising way of
conceptualizing EU Member State liability is as a species of constitutional
tort liability.
Member State liability within the EU presents the essential formal
characteristics of what may be described as a constitutional tort. Since a
constitution, like Community law, typically binds all State organs, including
the legislature and judiciary, and grants rights to individuals against the
State, it is not difficult to imagine a system of liability in which the
violation of constitutional rights by any State organ could result in State
liability for the harm caused. A scheme of constitutional tort liability of
this kind would be on all fours with Francovich liability, matching it
in each of its essential elements: the reason for liability would be the
causation of harm by the State resulting from a breach of individual rights
contained in a superior legal order; the acts of any State organ could
potentially attract liability; and the liability would give rise to an
individual cause of action in damages. If it qualified liability by imposing an
additional requirement of fault, it would match the system of EU Member State
liability as modified by Brasserie du PEAcheur.
In fact, there are
very few legal systems in which constitutional torts of this kind are
recognized. While all of the Member States of the EU recognize liability for
unconstitutional administrative action, I have found none that recognize
liability for unconstitutional legislative or judicial conduct.
In the
case of legislation, it is settled law in most countries that there is no
liability for unconstitutional legislation. In Germany, for example, the
Bundesgerichtshof (Federal Court of Justice) held in 1987 that there was no
State liability for unconstitutional legislation.54 In France, the principle of E9galitE9 devant
les charges publiques is the only exception to an otherwise absolute rule
of legislative immunity.55 In
France56 and the Netherlands,57 there is not even a judicial mechanism for
challenging the constitutionality of a promulgated law.
Even in the United
States and Canada, where constitutionalism is supposedly practised with great
devotion, constitutional tort liability seems to be very limited, and liability
for unconstitutional legislation is all but excluded. In Canada, a recent
decision of the Supreme Court suggests (albeit with some equivocation) that the
adoption of legislation in violation of constitutional rights does not give
rise to cause of action for damages.58 In
the United States, the obstacle to State liability comes from the fact that a
suit for damages based on a constitutional violation is seen as akin to
ordinary tort liability. Accordingly, the traditional immunity of governments
and officials persists, except where it has been waived by statute or limited
by the application of constitutional principles. In the result, officials can
be found liable in some situations,59 but
the state and federal governments are largely immune.60
A few examples of a true constitutional
tort decision can be found in the case law of the Judicial Committee of the
Privy Council. For instance, in Jaundoo,61 a 1971 case from Guyana, the Privy Council
accepted the claim of a landowner whose property had been expropriated without
compensation, contrary to her fundamental rights under the Guyanese
Constitution. The Privy Council observed that pursuant to article 19 of the
Constitution, a person whose constitutional rights have been contravened has a
right to apply to the courts for "redress." Their Lordships held that such
"redress" could include monetary damages, and remitted the case to the High
Court for an assessment of damages.
Jaundoo was a case involving
the executive branch of government, but the Privy Council had no hesitation in
applying the same principles to unconstitutional conduct by the judicial
branch, in a subsequent case from Trinidad and Tobago. The
Maharaj62 case involved a judicial
contempt order made in violation of the constitutionally protected right not to
be deprived of liberty except by due process of law. The contemnor brought an
action against the Crown, under a remedial provision of the Constitution of
Trinidad and Tobago essentially the same as that which had been relied on in
Jaundoo. The Privy Council held the Crown liable, reasoning that the
judge's immunity from civil liability did not preclude the liability of the
State as a matter of public law. As Lord Diplock explained,
... no change is involved in the rule that a judge cannot be made personally liable for what he has done when acting or purporting to act in a judicial capacity. The claim for redress under s. 6(1) for what has been done by a judge is a claim against the state for what has been done in the exercise of the judicial power of the state. This is not vicarious liability: it is a liability of the state itself. It is not a liability in tort at all: it is a liability in the public law of the state, not of the judge himself, which has been newly created by s. 6(1) and (2) of the Constitution.63
Another place where one finds something resembling a constitutional tort
is the law of the European Convention on Human Rights. The Convention is
clearly designed to confer rights on individuals, and, since the international
law considers itself superior to the domestic legal order, those rights emanate
from a superior order of law. By the same token, liability can attach to the
acts of any organ of government, including the legislative and judicial
branches.64 Moreover, the Convention
deviates from the statism of classical international law by providing
individuals with standing before the European Court of Human Rights,65 a body which has the power to grant "just
satisfaction," including monetary compensation, directly to the injured
party.66 Thus, in its three essential
elements - payor, payee and reason for the payment - compensation under the
European Convention seems conceptually similar to constitutional tort
liability.
Although the examples of true constitutional tort systems are
few, there is an abundant literature, primarily American, on the subject of
constitutional torts.67 Given the
conceptual identity between the two kinds of liability, one might think that
the constitutional torts literature would provide a promising starting-point
for my search for a theory of justice in support of EU Member State liability.
Part III of the paper will in effect be an experimental test of this
hypothesis. The aim will be to examine the main theories of justice which are
advanced in support of constitutional tort liability, with a view to assessing
their appropriateness as theories of State liability in the European Union.
36 See the opinion of Advocate General Tesauro in Brasserie du Pêcheur. Van Gerven also adopts a tort law approach in "The ECJ Case-Law as a Means of Unification of Private Law" in A. Hartkamp et al., Towards a European Civil Code, 2d ed. (The Hague: Kluwer, 1998), at pp. 96-97.
37 See Harlow, at p. 206, and the opinion of Advocate General Tesauro in Brasserie du Pêcheur. Craig discusses the characterization of Member State liability in English law, comparing it to an action for breach of statutory duty, a common law administrative tort: see "The Domestic Liability of Public Authorities in Damages: Lessons from the European Community?" in J. Beatson and T. Tridimas, eds., New Directions in European Public Law (Oxford, Hart: 1998), at pp. 81-82.
41 Breaches not causing harm to individuals may give rise to enforcement action at the behest of the Commission or a Member State under Articles 169 and 170.
42 Brasserie du PEAcheur, supra, at par. 34.
44 See, for example, Case C-261/95, Palmisani v. INPS, [1997] E.C.R. I-4025, in which the Court poses (but does not answer) the question whether public authorities can be sued under general Italian tort law.
45 See, for example, Harlow, supra, at p. 206, and the opinion of Advocate General Tesauro in Brasserie du PEAcheur.
46 See Schockweiler et al., "Le rE9gime de la responsabilitE9 extracontractuelle du fait d'actes juridiques dans la CommunautE9 europE9enne" [1990] R.T.D.E. 27; and P. Moor and J.-M. Woehrling, "Le contrF4le juridictionnel de l'administration", in G. Brabant et al., eds., Le contrF4le de l'administration en Europe de l'est et de l'ouest (Paris: CNRS, 1985), at p. 82.
47 C.E. Ass. 14 janv. 1938, SociE9tE9 Anonyme des Produits Laitiers ABLa FleuretteBB, Rec. 25; C.E. Sect. 22 nov. 1957, Compagnie de navigation Fraissinet, Rec. 635.
48 See Long, Weil et al., Les grands arrEAts de la jurisprudence administrative, at p. 310 (1993).
49 See N. Green and A. Barav, "Damages in the National Courts for Breach of Community Law", [1986] Y.E.L. 55, at p. 55. See also Kovar, at p. 273.
50 Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, [1963] E.C.R. 1, at par. 12.
51 See I. Brownlie, Principles of Public International Law, 4th ed. (Oxford: Clarendon Press, 1990), ch. 20, esp. pp. 449-50; International Law Commission, Draft Articles on State Responsibility, July 12, 1996, ch. II. In the context of the European Convention on Human Rights, see Lingens v. Austria, Ser. A, No. 103, 8 E.H.R.R. 407 (1986), at par. 46: "[The Court] does not have to specify which national authority is responsible for any breach of the Convention: the sole issue is the State's international responsibility."
52 Brasserie du PEAcheur, supra, at par. 34.
53 See K. Zemanek, "Responsibility of States: General Principles", in Max-Planck Institute for Comparative Public Law and International Law, R. Berhardt, dir., Encyclopedia of Public International Law, vol. 10 (North Holland, 1987), at p. 368.
54 Decision of 12 March 1987, Juristenzeitung 1987, p. 1024.
55 LaubadE8re, TraitE9 de droit administratif, vol. 1 (1994), at p. 904-908; Kovar, at p. 273; Morange, L'irresponsabilitE9 de l'C9tat lE9gislateur, D. 1962, chron. p. 163.
56 In France, the Conseil Constitutionnel may pronounce on the validity of legislation only before it has been promulgated and, even then, private individuals have no standing to bring challenges: see Constitution of the Fifth Republic, art. 61.
58 Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347, at par. 15-19. The equivocation comes from the Court's statement, at par. 19, that "it cannot be said that damages can never be obtained following a declaration of constitutional invalidity."
59 For example, 42 U.S.C. A71983 makes state and local officials liable for constitutional violations in some circumstances, while the liability of federal officials is based on the Due Process Clause of the Fifth Amendment: Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
60 Under the Federal Tort Claims Act, until 1974, the United States was vicariously liable only for the negligent acts of its agents. In 1974, the FTCA was amended to waive immunity for intentional torts. However, the United States remains immune from liability for unconstitutional legislative or judicial acts. See P.H. Schuck, Suing Government: Citizen Remedies for Official Wrongs (New Haven, YUP 1983); R.A. Cass, "Damage Suits Against Public Officers," 129 U. Pa. L. Rev. 1110 (1981); M. Olson, "Official Liability and Its Less Legalistic Alternatives," 42 L. and Contemp. Prob. 67 (1978); J.L. Mashaw, "Civil Liability of Government Officers: Property Rights and Official Accountability," 42 L. and Contemp. Prob. 8 (1978); R. Epstein, "Private-Law Models for Official Immunity," 42 L. and Contemp. Prob. 53 (1978); Norton v. United States, 581 F.2d 390 (4th Cir. 1978).
61 Jaundoo v. A.G. Guyana, [1971] A.C. 972 (P.C.).
62 Maharaj v. A.G. for Trinidad and Tobago (No. 2), [1978] 2 All E.R. 670.
63 Ibid., at p. 679, per Lord Diplock.
65 Article 34 of the Convention, as amended by Protocol No. 11 (ETS No. 155) of May 11, 1994.
67 A list of books and articles on constitutional torts appears in Appendix A.
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