Judicial Protection Through the Use of Article 288(2)EC
The last decade has seen an evisceration of the once-dominant democratic legal concept of "public interest." Its place is being steadily usurped by a problematic "compensation culture" which, in an ostensible effort to protect the individual, is wreaking havoc with the principles of responsibility and liability that underlie the rule of law, especially in the commercial context. Nowhere is this troubling development more evident than in the jurisprudence surrounding Article 288(2)EC, which has grown from a measure of sanction against the Community Institutions for maladministration into a remedy for infraction or injury through the fault of those Institutions or, by extension, as a result of Member State breach of Community law. Judicial Protection in the EC is the first in-depth analysis of this "hot spot" in EC law. With prodigious scholarship and persuasiveness, the author investigates the relevant case law of the Court of Justice from the standpoint of the fundamental legal principles involved. She finds that the distinct problem of the accountability of the Community Institutions, so important where democratic controls are weak, has been subsumed to the responsibility to compensate. In her penetrating commentary she identifies an erosion of basic democratic principles and points the way to ensuring that policies claimed to be in the public interest actually serve that public interest. Cases examined in detail include the "Isoglucose" cases, Brasserie, Factortame, Schoppenstedt, Bergaderm, Loticke, and Eurocoton. The author refers extensively to the ECSC Treaty which, although it expires in July 2002, continues to provide significant authority for the interpretation of Article288(2)EC. This is an important book for all legal professionals interested not only in the development and future of European law, but in the currently prevailing global view of the principle of accountability from which the very use and practice of law derives.
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Creating a Jurisprudence for NonContractual Liability
Admissibility the Basis of Claim and the Application of
The Act Determining the Conditions of Liability Applied by the Courts
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Action for Damages adopted Advocate General Roemer Advocate General Tesauro Amull applicant Article 230 EC Article 34 Article 40 basis of claim Bayerische HNL Brasserie and Factortame breach of Community breach of law breach of obligation causation claimant Commission I998 common agricultural policy Community Courts Community Institutions Community law compensation action conditions of responsibility Council and Commission Court of Justice Damages in Community decision deﬁned difﬁcult directive discretion EC Treaty economic ECSC Treaty effect engage responsibility European Parliament European Union failure fault ﬁrst Francovich give rise govemment Hague/London/Boston Heukels Ibid identiﬁed illegality individual concem infringement intemational law judgment at paragraph justiﬁcation legislative acts legislative measures Lutticke conditions manifest and grave McDonnell Eds misuse of powers national courts non-contractual liability objective Opinion of Advocate Plaumann principles of law procedure provision public interest regulation remedy reparation requirement rule of law Schoppenstedt conditions sufﬁciently serious breach superior rule unlawful Vloeberghs Whilst wrongful conduct