Journal Article

Member state liability in Europe and the United States

Daniel J. Meltzer

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 4, issue 1, pages 39-83
Published in print January 2006 | ISSN: 1474-2640
Published online January 2006 | e-ISSN: 1474-2659 | DOI:
Member state liability in Europe and the United States

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  • Constitutional and Administrative Law
  • UK Politics


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The European Community (EC) and the United States have contrasting approaches to the place of member state liability to private parties as a remedy for the violation of the law of the union. The EC recognizes a general doctrine of member state liability in damages for violations of EC law, while American states generally possess sovereign immunity from private damage claims for violations of federal law. This contrast is paradoxical, as one would expect the U.S., a better established and more powerful federal polity, to have fewer concerns about the imposition of state liability than the less powerful and more fragile EC.

A cluster of differences between the EC and the U.S. helps to account for this paradox. These differences include the factual circumstances of their respective seminal cases; the historical settings in which they arose; civil law systems' greater hospitality to governmental liability as compared to common law systems; stronger political control over judicial appointments in the U.S.; and EC member states' stronger safeguards against unwelcome federal legislation. Collectively, these differences help to explain why state liability was deemed more important to the center and less threatening to the member states in the European Community than in the U.S.

Journal Article.  22159 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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