Acceso usuarios
Skúli Magnússon, Ólafur Hannesson Ísberg
Most - if not all - commentators have assumed, albeit without a great deal of analysis, that there exists a parallel between EU law and EEA law with respect to the substance of State liability and its material conditions. This article challenges this view by claiming that this perspective is unsatisfactory, both from a theoretical and a practical point of view. After analysing the EFTA Court's case law on state liability in detail and comparing it with that of the ECJ, the article proceeds to discuss how the distinctive features of the EEA legal order - in particular the absence of direct effect and primacy - bear upon the role of State liability and its material conditions. While the case law of the EFTA Court leaves the question of full parallelism unanswered, the article argues, on the basis of the homogeneity aim of the EEA Agreement, for the reshaping of the condition of seriousness within the scope of application of EEA law, in particular when dealing with rules that would have possessed direct effect and supremacy in the EU legal order
