State Liablity - Ten years after Francovich / Is German State Liability law compatible with EC law?

Abstract: This paper focuses on a comparison of German law on state liability with European state liability rules, as they have been developed through case law since Francovich. The paper is divided into three main parts. A short overview of procedural aspect explaining when and how Member States can be held liable and which remedies are available for the individual, as well as a description of the case law concerning state liability under European Law is presented in the first part of this paper. In order not to bore the reader with background information to well-known cases, I have chosen to present this additional information in the most important cases in the text of the footnotes. The case presentation involves well-known cases like Francovich and Brasserie du Pêcheur, cases before the Francovich judgement in order to show how state liability was dealt with before as well as cases decided after the Brasserie judgement to show the development of case law in the post-Francovich era. The second part of this paper provides an on overview of German state liability law. As the German state liability rules are very confusing, since they involve claims rooted in different fields of law, the main emphasis of the presentation will lie with those norms problematic within a European context, i.e. the concept of tortious governmental liability (Amtshaftung). As the translation of German terms is often likely to result in several possible expressions in English, I have chosen to write the German term in brackets behind the translation in order to facilitate understanding for those familiar with the German concepts. A critical analysis of the follow-up judgements in the German Courts will be presented in the third part of this paper. Before discussing whether the German rules of state liability are compatible with EC law concerning state liability, or whether a reform is needed, the relationship between national courts and the ECJ, in particular concerning the preliminary ruling procedure is analysed. Summing up the main arguments and points of this paper, I will finally draw a conclusion concerning the question of where we stand - ten years after Francovich.