Member state liability in Europe and the United States
* Story Professor of Law, Harvard Law School; email: Meltzer{at}law.harvard.edu. I am grateful to the law faculty at the European University Institute, which graciously hosted me as a visiting fellow in 2004, when some of these ideas had their gestation. For extremely helpful comments, I thank Bill Davey, Gráinne de Búrca, Dick Fallon, Daniel Halberstam, Vicki Jackson, Koen Lenaerts, Jim Pfander, David Shapiro, Ernie Young, and Bruno de Witte. Fernanda Nicola was a special help as I began to study the European Union, and Erik Murray-Knox, Florian Sander, and Won Shin provided helpful research assistance.
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.