Seminar and Workshop on Advanced Issues in Law and Policy of the European Union, nafta and the wto



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Harvard Law School
Jean Monnet Chair


Seminar and Workshop on Advanced Issues in Law and Policy

of the European Union, NAFTA and the WTO
Professor J.H.H. Weiler

Harvard Jean Monnet Working Paper 9/99


Ian B. Lee

In Search of a Theory of

State Liability in the European Union

Harvard Law School  Cambridge, MA 02138


All rights reserved.

No part of this paper may be reproduced in any form

Without permission of the author.

ISSN 1087-2221

© Ian B. Lee

Printed in the United States of America in 2000

Harvard Law School

Cambridge, MA 02138

USA


In Search of a Theory of
State Liability in the European Union

Ian B. Lee*



Abstract: The aim of this paper is to discover the theoretical underpinnings of the case law of the European Court of Justice on Member State liability and the normative justification for such liability. The author argues that EU Member State liability presents the same formal characteristics as constitutional tort liability, and examines the theories of justice which might underlie a system of constitutional torts with a view to assessing their ability to explain the phenomenon of EU Member State liability. The author concludes that the theories of justice which provide a normatively adequate rationalization of constitutional tort liability are incapable of explaining the liability of Member States for violations of EU law. In the final part of the paper, the author suggests an explanation for the discrepancy and discusses the implications of this finding for further research on the issue of State liability in the European Union.

*






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