From Francovich to Köbler and beyond : The evolution of a State liability regime for the EC

The aim of this paper is to present the evolution of the Francovich doctrine within the European legal order. The first part deals with the gradual development of the ECJ's case law on State liability in damages for breach of EC law. Starting from the seminal Francovich and Brasserie du Pêcheur, the clarification of the criteria set by the Court is attempted with reference to subsequent case law, whereas issues concerning the extent and form of the compensation owned are also mentioned. The second part concerns one of the more recent developments in the field, namely State liability for breaches of Community law attributed to national judiciary. The Court's ruling in Köbler is examined in connection with two other recent judgments, namely Commission v. Italy of 2003 and Kühne & Heitz, as an attempt of the ECJ to reframe its relationships with national supreme courts and appropriate for itself the position of the Supreme Court in the European legal order. The implications on State liability claims by the ruling in Commission v. France of 1997 constitute the theme of the third part, where it is submitted that Member States can also be held liable for disregard of Community law by private individuals within their respected territories. To this extent, Schmidberger is viewed as a manifestation of this opinion, with fundamental rights acquiring a new dimension, being invoked by the States, contra the individuals as a shield to liability claims. Finally, the third part examines the relationship between the Francovich doctrine and the principle of legal certainty and concludes that the solutions employed by the ECJ have been both predictable and acceptable by the national legal orders. Keywords: State liability, damages, Francovich, Köbler, Schmidberger

Kansankirkko, uskonnonvapaus ja valtio : Suomen evankelis-luterilaisen kirkon kirkolliskokouksen tulkinta uskonnonvapaudesta 1963-2003

A national church, freedom of religion, and the state The interpretation of freedom of religion formulated by the Synod of the Evangelical Lutheran Church of Finland in reference to the relationship between the Church and the state from 1963 to 2003 This paper discusses the interpretation of freedom of religion formulated by the Synod of the Evangelical Lutheran Church of Finland during the years 1963-2003. The effect of these formulations and decisions made by the Synod on the relationship between the Church and the state is also discussed as the relationship has been a central issue in the debate about freedom of religion in Finland. Active co-operation with the state caused a dispute in the Church during this period. Another cause for concern for the Synod, a strong defender of the national church, was the weakening position of the Church in a society undergoing many changes. As the Synod of 1963 discussed the status of the Church, the Church began to reflect upon its identity as a national church, and to evaluate freedom of religion in the country, as well as the relationship between the Church and the state. Some of the radicals of the 1960s and 1970s presented the Church as an obstacle to freedom of religion. The Synod was keen to emphasize that, in accordance with international agreements on human rights, freedom of religion means the freedom to have and follow a religion, and also that freedom of religion was a right of the majority in Finnish society. As an active guardian of the rights of its members, the Synod defended such issues as the teaching of religion in schools. Throughout the dispute, the Church focused on its right to act freely and, according to its identity, to express spirituality in the society. At the end of the 1960s, several efforts to reform the law on the freedom of religion and the relationship between the Church and the state gained favour in the Synod. These formulations of the Church were the basis for the work of a parliamentary committee in the 1970s, but no significant changes resulted. Instead, freedom of religion in Finland was judged to be fairly good. The committee paper did, however, lead to preparations for greater independence of the Church. The Synod at the time chose to react to the changes presented to it, but it was not before the 1990s that the Synod became an active force of reform in these matters. Though the Synod, particularly from the 1970s onwards, began clearly to favour the improvement of the position of other religious communities in Finland, it felt it had reason to be cautious as each church and religious community had the freedom to decide individually its relationship with the state. Any changes that would have weakened the position of the Church in Finnish society were met with disapproval in the Synod. Even though some theological concerns regarding the national identity of the Church were raised, the Synod emphasized issues of church policy. Keen to preserve and protect its legal status in society, the Synod judged that this status supported the freedom of action enjoyed by the Church as well as the freedom of religion.

Kansankirkko, uskonnonvapaus ja valtio : Suomen evankelis-luterilaisen kirkon kirkolliskokouksen tulkinta uskonnonvapaudesta 1963-2003

A national church, freedom of religion, and the state The interpretation of freedom of religion formulated by the Synod of the Evangelical Lutheran Church of Finland in reference to the relationship between the Church and the state from 1963 to 2003 This paper discusses the interpretation of freedom of religion formulated by the Synod of the Evangelical Lutheran Church of Finland during the years 1963-2003. The effect of these formulations and decisions made by the Synod on the relationship between the Church and the state is also discussed as the relationship has been a central issue in the debate about freedom of religion in Finland. Active co-operation with the state caused a dispute in the Church during this period. Another cause for concern for the Synod, a strong defender of the national church, was the weakening position of the Church in a society undergoing many changes. As the Synod of 1963 discussed the status of the Church, the Church began to reflect upon its identity as a national church, and to evaluate freedom of religion in the country, as well as the relationship between the Church and the state. Some of the radicals of the 1960s and 1970s presented the Church as an obstacle to freedom of religion. The Synod was keen to emphasize that, in accordance with international agreements on human rights, freedom of religion means the freedom to have and follow a religion, and also that freedom of religion was a right of the majority in Finnish society. As an active guardian of the rights of its members, the Synod defended such issues as the teaching of religion in schools. Throughout the dispute, the Church focused on its right to act freely and, according to its identity, to express spirituality in the society. At the end of the 1960s, several efforts to reform the law on the freedom of religion and the relationship between the Church and the state gained favour in the Synod. These formulations of the Church were the basis for the work of a parliamentary committee in the 1970s, but no significant changes resulted. Instead, freedom of religion in Finland was judged to be fairly good. The committee paper did, however, lead to preparations for greater independence of the Church. The Synod at the time chose to react to the changes presented to it, but it was not before the 1990s that the Synod became an active force of reform in these matters. Though the Synod, particularly from the 1970s onwards, began clearly to favour the improvement of the position of other religious communities in Finland, it felt it had reason to be cautious as each church and religious community had the freedom to decide individually its relationship with the state. Any changes that would have weakened the position of the Church in Finnish society were met with disapproval in the Synod. Even though some theological concerns regarding the national identity of the Church were raised, the Synod emphasized issues of church policy. Keen to preserve and protect its legal status in society, the Synod judged that this status supported the freedom of action enjoyed by the Church as well as the freedom of religion.