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Court of Session makes finding of Francovich liability

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Court of Session makes finding of Francovich liability


16 February 2016

Angus Growers Ltd v Scottish Ministers [2016] CSOH 26

Court of Session makes finding of Francovich liability

Lord Tyre has found the Scottish Government liable in damages for a breach of EU law under the principle first established by the European Court of Justice in the case of Fra ncovich v Italian Republic [1991] ECR I-5357.  The pursuers are a producer organisation (“PO”) formed under the EU’s Fresh Fruit and Vegetable Scheme, together with several individual fruit growers who are members of the PO.  Acting on behalf of Ministers, the Rural Payments Agency (“RPA”) had withdrawn the PO’s recognition under the scheme, causing scheme payments to cease and, as the pursuers allege, causing them a variety of financial losses.  The RPA’s breach of EU law had been confirmed by the Inner House in earlier proceedings reported at 2013 SLT 611.  The Scottish Ministers pled that the first two conditions for  Francovich liability were not established, arguing (i) that the individual growers had no rights under the EU rules that had been infringed and (ii) that in any case the breach of EU law had not been sufficiently serious to attract state liability. In his Opinion, Lord Tyre held that the applicable EU legislation, under which POs were deemed to be acting in the name and on behalf of their members in economic matters, did entail the grant to individual growers of rights in respect of the PO’s recognition under the Scheme.  He further held that in all the circumstances (including the clarity of the rule breached, the inexcusable error of law, and the inconsistent positions adopted by the RPA) the breach of EU law occasioned by the wrongful withdrawal of the PO’s recognition was sufficiently serious to confer a right to reparation.  

Axiom’s James Mure Q.C. and Morag Ross appeared for the pursuers, while the Dean of Faculty James Wolffe Q.C. appeared for the defenders.

https://www.scotcourts.gov.uk/search-judgments/judgment?id=f1bc06a7-8980-69d2-b500-ff0000d74aa7