Ian B. Lee*1
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.*2*
1 * LL.M., Harvard Law School; Associate, Sullivan & Cromwell, Paris.
2 ** The author wishes to thank Professors Joseph H.H. Weiler and Josephine Shaw for their encouragement and comments; the participants in the seminar, "WTO, NAFTA and EU: Advanced Issues in Law and Policy", at Harvard Law School (Spring 1998) for helpful discussion; and Heidi Libesman for her support and for comments on an earlier draft. The support of the Social Sciences and Humanities Research Council of Canada is gratefully acknowledged.
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