Sufficiently Serious : How clear must a Member State´s breach of Community law be to make it liable?

Abstract: In the autumn of 2007, the Swedish Chancellor of Justice rejected a claim for damages by an individual against the Swedish state on the grounds that the breach was not to be regarded as sufficiently serious. The claim for damages was based on the Swedish custom authority’s confiscation of alcoholic beverages imported to Sweden by individuals, an act that the ECJ had found contrary to Community law. This study is evaluating the compatibility of the Chancellor of Justice´s decision with Community law. An analysis of the guidelines given by the ECJ concerning state liability in general, and the sufficiently serious criterion in particular, are also presented in order to make this evaluation. This analysis illustrates that there are some conditions which are crucial when a national court is to make the assessment whether a breach is considered sufficiently serious to warrant restitution to an individual. Most importantly, the clarity of the infringed Community provision and the margin of discretion awarded to the Member State when committing the breach are factors that, according to the ECJ, are decisive when making this assessment. The Swedish Chancellor of Justice´s decision to deny the claim for damages is, when comparing it to the guidelines given by the ECJ, definitely questionable.