2) What is a member state?

(usually not the govt itself which is acting in breach of EU law)

  • Comm v Belgium, 1970: just cos institution responsible is constitutionally independent is NOT a justification. MS responsible regardless of which agency of the State is responsible.
    • Also liable for acts/omissions of constitutionally independent public authorities (Comm v Ireland, 1982). Here entity received govt funding.
    • And for constituent state within federation (Comm v Greece, 1988)
    • And even private companies if govt exercises considerable influence over them (Comm v Germany, 2002)
  • Although it is nat govt who will appear before ECJ, the defendant is the State – legislature/judiciary are organs of the state, and their acts may trigger enforcement proceedings.
  • But can enforcement action be brought against national courts? Huge discussion in Kobler, 2003:
    • Contro cos in democratic society, govt not meant to have influence over judiciary (and legislative). Rather, Parlt should be controlling govt, with judiciary being entirely independen, the Manchester Taxi firm
    • Here, focus on question of representation, not liability.

ECJ in this case said that if MS sup ct made mistake in application of EU law, it did so as a rep of the State, hence can bring enforcement action against judiciary’s action!