p Factortame, paras 44 to 46. In this respect the Court equated the position of the
Community and national legislators (para 47). A “strict” (meaning more limited)
approach was taken towards the liability of the Community (or therefore of
national legislators) in the exercise of legislative activities. This was explained
(para 45) as due to two considerations:
“45. First, even where the legality of measures is subject to judicial
review, exercise of the legislative function must not be hindered by
the prospect of actions for damages whenever the general interest of
the Community requires legislative measures to be adopted which
may adversely affect individual interests. Secondly, in a legislative
context characterized by the exercise of a wide discretion, which is
essential for implementing a Community policy, the Community
cannot incur liability unless the institution concerned has manifestly
and gravely disregarded the limits on the exercise of its powers…”
As the Court went on to point out, “the national legislature — like the Community
institutions — does not systematically have a wide discretion when it acts in a field
governed by Community law” (para 46). It depends on the nature of the European
law or principle being implemented. However, in the context of eligibility to vote,
it is clear that national legislatures have a wide discretion.
77.
Where a wide legislative discretion of this nature exists, three conditions
govern the incurring of any liability on account of the legislative choices made by
the State pursuant to such discretion. These were explained in Ex p Factortame as
follows:
“51 In such circumstances, Community law confers a right to
reparation where three conditions are met: the rule of law infringed
must be intended to confer rights on individuals; the breach must be
sufficiently serious, and there must be a direct causal link between
the breach of the obligation resting on the State and the damage
sustained by the injured parties.
52 First, those conditions satisfy the requirements of the full
effectiveness of the rules of Community law and of the effective
protection of the rights which those rules confer.
53 Secondly, those conditions correspond in substance to those
defined by the Court in relation to Article 215 in its case-law on
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