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Schäfer, Hans-Bernd --- "Can Member State Liability for the Infringement of European Law Deter National Legislators?" [2012] ELECD 669; in Eger, Thomas; Schäfer, Hans-Bernd (eds), "Research Handbook on the Economics of European Union Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of European Union Law

Editor(s): Eger, Thomas; Schäfer, Hans-Bernd

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801003

Section: Chapter 4

Section Title: Can Member State Liability for the Infringement of European Law Deter National Legislators?

Author(s): Schäfer, Hans-Bernd

Number of pages: 13

Extract:

4 Can member state liability for the infringement
of European law deter national legislators?
Hans-Bernd Schäfer*


1 INTRODUCTION

Legislative injustice originates when a legal norm does not conform to higher-ranking
law, if the legislative body through its actions or lack of action has precipitated or
extended an illegal condition. For most legal orders state liability for legislative injustice
does not exist or it exists only in rare and exceptional cases. The most important excep-
tion to this is EC law. Through a series of wide-reaching decisions, the European Court
of Justice (ECJ) established liability for harm in the case that a national law of a member
state violates EC law and an individual's right is violated.1
The ECJ has justified its innovative decisions in particular to give full effect to European
law.2 It created an instrument for European citizens that should lead to a more effective
implementation of EC law within the member states and provide incentives to legisla-
tors in the member states to conform to EC law. The focus of this chapter is to examine
whether and to what extent this goal can be achieved by state liability for infringement
of European law by legislators in member states.
The economic analysis of the incentives of liability for legislative acts of EU member
states which violate superior law is undeveloped to date. Lee, who uses the concept of
external effects, comes to an optimistic conclusion, which is however not supported by
the ...