Valstybių narių ir institucijų atsakomybė už ES teisės pažeidimus: diskrecijos sąvoka ETT praktikoje ir jos ribos

Abstract

This graduating magister study concentrates on the discretion and other issues concerning its proper exercise in the European Court of Justice’s case law on State liability and non-contractual, institutional liability. Then seeks to compare the Court’s case law on State liability with non-contractual liability. In discussing these topics, the study will also consider the potential role of the new Constitutional Treaty. A conclusion is made that although in many respects discretion has taken centre stage, the notion is not defined, neither by the Court, nor, as rule, by legal scholars. In Francovich the European Court of Justice set out the conditions of liability of Member States in the case of non-transposition of directives. The European Court of Justice has followed-up its seminal Francovich case in joined cases Brasserie du Pecheur & Factortame and case British Telecommunications. The Brasserie du Pecheur/Factortame is likely to determine the Court���s approach to questions of liability of both Member States and the EU in the foreseeable future. The European Court of Justice has linked its case law on Article 288 EC Treaty to the matter of State liability for breach of Community law. The Court have done this by requiring a sufficiently serious breach of Community law in relation to Member State liability, just as it required in the context of the liability of Community institutions. Indeed, a ius commune is in the making now that it has recognized a general principle common to the legal systems of the Member States that unlawful conduct gives rise to an obligation to make good the damage caused. The requirement of a sufficiently serious breach of Community law is still the most confusing element of the Community liability system and it raises lots of questions, even after more than dozens of cases in which the Court could have clarified its goals and means. Its concluded in the study that while Brasserie signalled the coming together of the Court’s case law on institutional and State liability, its clear that the two are already moving apart again.