Gert Brüggemeier

eu Product Safety Law, Whistleblowers and Member State Liability for Acts of Officials

The significant Finnish case of a.g.m.-cos.met offered the chance for the ecj to revitalise and consolidate the forgotten second track of Union and Member State responsibility under eu law: vicarious State liability. It requires a tort of a public servant in performing his official duties (ex-Art. 40(2) tecsc, Art. 340(2) tfeu). The intricacy of the case was that the subject matter was not a regular everyday tort, but the tort of breach of eu law (effective infringement of free movement of goods – Art. 28 tfeu) through statements of a public servant. To determine an unjustified breach of eu law by the servant, the Court would have had to weigh and balance the fundamental freedom of the manufacturer and the servant’s fundamental right of freedom of expression. - The ecj missed the problem of the case. It pressed the public warning into the rigid scheme of breach of eu product safety law. Therefore acts of public servants must be transformed into acts of the State itself. Thus, the Court introduced a new type of semi-vicarious eu State liability, unknown to Member States’ law and to the international law. Last but not least, the Court missed the chance to make freedom of expression and public warnings outside the safeguard procedure compatible with the structure of eu product safety law.