State Liability for Breaches of European Law: An economic analysis (Ökonomische Analyse des Rechts)

In the European Union, member states not respecting European Law run the risk of being held liable in damages to citizens. As an alternative to this Francovich liability and on the initiative of the European Commission, the European Court of Justice may publicly fine states for breaching European Law according to Art. 228 of the European Community Treaty. Using Law & Economics methods, Bert Van Roosebeke analyses non-contractual state liability in the European Union. He empirically explains differences in member states’ breaching behaviour and presents the state liability doctrine as developed by the European Court of Justice in a number of remarkable judgements. On the normative level, he embeds the issue of state liability in the existing Law & Economics literature and concludes that compliance is the true economic aim of state liability legislation. The author presents a comparative analysis of Francovich liability and public fining according to Art. 228 of the EC Treaty. He investigates the effectiveness of both private and public law enforcement mechanisms and – on the basis of a model of political decision-making and the influence of state liability –formulates improvements to the rules of state liability. With this work, which was written under my academic supervision at the Graduate College for Law and Economics, Bert Van Roosebeke has covered a topic which is rather unusual to the literature of law and economics in a number of ways. This work does not – as does the huge majority of law and economics scholarship – deal with individual behaviour, as addressed by private law. Rather does the author analyse state behaviour as governed by European made state liability jurisdiction and law. He does so with the law and economics instruments traditionally used in the analysis of contract law, tort law and criminal law. The methods of analysis are truly interdisciplinary as well: legal, empirical as well as model-theoretical methods are applied to the questions under discussion. The starting point for the academic discussion on state liability was the European Court of Justice's landmark Francovich judgement in 1991. In that judgement, the ECJ – against the declared political opinion of EU member states – controversially paved the way for a liability of EU member states for damages caused by the n- transposition of European directives into national law. The judgement was followed by a rich and lengthy discussion among legal scholars, in which the competency of the ECJ to introduce such non-contractual state liability was controversially debated. Front Matter....Pages I-XVII Introduction....Pages 1-3 Basics of the European Union....Pages 4-13 (What and Why) Do Member States breach?....Pages 15-66 Treating Breaches: The Law’s and the Court’s Answer....Pages 67-102 Introducing Normative Law and Economics: Searching for an Aim of State Liability Law....Pages 103-137 Are Breaches really that Bad? A Rationale not to allow Breaches....Pages 138-144 Evaluation of the Current Situation: Two Distinct Enforcement Mechanisms....Pages 145-145 Procedural Aspects. Private and Public Enforcement: Complements or Substitutes?....Pages 146-186 Substantive Aspects of Public Enforcement: Deterrence by Fines?....Pages 187-201 Substantive Aspects of Private Enforcement: Deterrence by Damage Compensation?....Pages 203-240 Back Matter....Pages 241-258