EU법상 개인에 대한 국가배상책임

Abstract

State Liability in Damages to Individuals for Breach of Community Law One wholly new area of Community law has been created by the ECJ. This is the area surrounding the newly judicially established principle of the liability of Member States in damages to individuals for breach of Community law. This law on liability is a new and expanding area which is inherently complex. The absence of foundation in the Treaties or in secondary legislation, the differing constitutional structures of the Member States regarding the liability of sovereign to citizen or subject, the division of functions between the ECJ as interpreter of the law and the national courts as appliers, and the competence (which has become shared) in national procedural law so far as it relates to Community law, compound the problems which are intrinsically conceptually and technically difficult, even in the law of a nation state. The root of the principle is Joined Cases C-6,9/90, Francovich and Others v. Italy. The clearest exposition on the subject to date, in a judgment which is programmatic constitutional law-making unclouded by facts, objections, or authority, is Joined Cases C-46,48/93, Brasserie du Pêcheur SA v. Germany and R v. Secretary of State for Transport ex parte Factortame Ltd and Others. And there are some cases such as Commission v. Italy, Kuehne & Heitz, and Koebler.