Chapter 5 Guidance on answering assessment questions

Member State liability in damages

Alf works for Humber plc, a company created to build and operate a railway bridge across the Humber estuary. It is authorized to do so under s1 of the (fictitious) Estuary Bridges Act 2002, which also gives it powers to regulate the connecting train service.

(Fictitious) Directive 2010/2010 requires Member States to take all measures necessary to ensure that bridge workers are provided with appropriate safety equipment, including hard hats.  The Act merely provides that licence holders must ensure that their employees are aware of safety hazards and advised to wear appropriate clothing.

Alf sustained a serious head injury when a cable fell on him during construction of the bridge, and as a result is unfit to work. He claims that his injury was caused by Humber plc’s failure to provide workers with hard hats. Humber plc claims that it had made Alf aware of the risks and had advised him to wear a hard hat, although the company itself did not provide them. It argues that the Act only requires the provision of information and advice.

1. Advise Alf as to whether he has any cause of action against the UK government. 

The UK government is under a duty to transpose Directive 2010/2010 by the deadline set in it.  The question does not specify when this deadline is, and it would be necessary to confirm the date (stated in the Directive).  However, most Directives allow a transposition period of one to two years, and since the Directive is dated 2010 it is likely that the deadline has now passed.  As the UK government has failed to transpose the Directive into national law, it is guilty of a breach of EU law and may incur liability in damages as established in the case of Francovich and others v Italy (Cases C-6 & 9/90 [1991] ECR I-5357), if three conditions are satisfied. 

First, the Directive must grant right to individuals.  In this case, Directive 2010/2010 grants rights to tunnel workers in respect of pay and conditions of employment.  Second, the content of those rights must be clear from the Directive.  It is submitted that Directive 2010/2010 clearly provides the right to a hard hat.  The fact that the meaning of “appropriate safety equipment” may not be sufficiently clear is irrelevant as Alf’s claim is based only on the lack of a hard hat. Third, there must be a causal link between the UK’s breach and the loss suffered by Alf.  If Alf’s claims about the cause of his injury are true, it appears that the State’s failure to transpose the right to a hard hat into national law has caused his personal injury and thus his ability to work.  He can thus claim damages from the UK government. 

2. How, if at all, would your answer to question 1 differ if the Estuary Bridges Act was dated 2012?

If the Act was dated 2012, it would no longer be the case that the UK had failed to transpose the Directive.  However, given the discrepancy between the Act and the Directive, it can be argued that the UK has failed to transpose it correctly.  In R v HM Treasury, ex p British Telecommunications plc (Case C-392/93 [1996] ECR I-1631)the Court of Justice held that that the State could incur liability for such a breach, and that the conditions governing liability were the same as those which it had set out previously in Brasserie du Pêcheur SA v Germany and R v Secretary of State for Transport, ex p Factortame (‘Factortame III’) (Joined Cases C-46 & 48/93) [1996] ECR I-1209

First, the State must have breached a rule of EU law which was for the protection of individuals.  Here, it is submitted that the UK has failed to correctly transpose a Directive which is for the protection of tunnel workers.  The State may argue that the requirement of “appropriate safety equipment” constitutes correct transposition, but it is submitted that this argument is unlikely to succeed because it does not expressly refer to hard hats, and would not necessarily be interpreted as including them. 

Second, the breach must be sufficiently serious. It is submitted that the requirement in the Directive as to hard hats is clear and that, applying the criteria in Factortame III for what constitutes a sufficiently serious breach, it can therefore be argued that the infringement in this respect is intentional, and the error of law inexcusable (although the State may put forward a similar argument to that suggested in the previous paragraph).  It is not known whether the EU Commission has commented on the Act, but this could be checked.  If any adverse comments were made, this would further strengthen the case that the breach is sufficiently serious. 

Third, there must be a causal link between the UK’s breach and the loss suffered by Alf.  If Alf’s claims about the cause of his injury are true, it may be that the State’s failure to transpose the right to a hard hat into national law has caused his loss as explained above. He would thus be able to claim damages from the UK government. 

Note: on the facts of this question, it might be possible for Alf to bring a claim against Humber (via direct or indirect effect: see further Chapter 4). However, you should not discuss this in your answer since you are only asked to advise on the enforcement of his rights against the UK government