Critically discuss this statement with reference to decided cases and Essay

Critically discuss this statement with reference to decided cases and academic opinion - Essay Example Such liability is not directly applicable, as the liability of Community institutions and the liability of the Member States are not always comparable.4 An instance of this is to be found in the Brasserie decision. In Brasserie, the ECJ extended the right of individuals to claim such damages, from any organ of the Member State whose act or omission had resulted in the damage.5 This makes it reasonable to presume that the liability case law, with regard to Member States, is relevant to damages claims for breach of EC law public procurement rules.6 Such course of action is with regard to contracting authorities that are public bodies. However, the term State tends to be vague, even within the realm of Member State liability. There is considerable disagreement as to whether the definition of State aid, provided in the ruling in Foster,7 as being emergent from the State should be acknowledged. All the same, the case law makes it very clear that the term State, in the context of liability cases, has a wider connotation and includes in its ambit, the decentralized bodies and authorities. 8 Hence, there is substantial common ground between a contracting authority and State entity under liability, despite these concepts being incongruent to each other. This contention is restricted to the intersection, wherein the contracting authority is in reality a State body. The public procurement law requires an action for liability to be brought against the contracting authority. However, it is up to the internal system of the national law to identify the State instance against which the action for liability is to be made. 9 This discretion accorded to the national law, while identifying State liability issues, results in grave injustice to the individual. This is because an aggrieved person has the right of direct effect only against a State and its emanations. Moreover, in this case, the ECJ ruled that the liability arising from the damage undergone by individuals, on account of a breach of Community law, was analogous to the liability of the Community under similar circumstances. This holds good, as long as there is no specific justification for the breach of the Community law. 10 This principle was echoed in the decision in Bergaderm.11 Furthermore, in the Brasserie case, 12 the conditions resulting in the liability of a Member State were described. These are; first infringement of rules of the Community that are aimed at providing individual rights; second, the existence of a breach of sufficient gravity; and third, a causal relationship between the breach and the damage sustained.13 This ruling however, failed to address all the issues involved. For instance, the issue of seriousness of the breach of Community law was left unresolved. Moreover, the ECJ had differentiated between areas of sparse and wide discretion, during its attempt to determine whether there were grounds for State liability, as well as the precise nature of these conditions. 14 Mor eover, the breach of Community law by a Member State, which caused damage to an individual, placed that Member State under an obligation to make good the loss. This principle was enunciated in the Francovich decision by the ECJ. 15 In addition, in the Francovich case, the European Court of Justice (ECJ) ruled that the