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This article describes the extent to which an EU member state is liable to its citizens for the state's failure to comply with its obligations under EU law.
The principle of DirectEffect, ennunciated by the ECJ in cases such as VanGendEnLoos1963 and many others, makes it clear that an individual may rely on his rights under EU law in actions against the state in the national courts. For example, in VanDuyn1974, an individual successfully pleaded her rights under an unimplemented Directive in the British courts against the Home Office, which was seeking to prevent her entering the country.
However, it was not until the decision in Francovitch1991 that the ECJ recongized a specific liability in damages on the part of the state. In Francovitch, the claimants had suffered financial losses when their employer became insolvent, which they would not have suffered had the Italian state implemented a Directive intended to protect employees against this occurence.
It was not be any means essential that the ECJ hold the state liable, or stipulate an award of damages. After all, the ECJ has repeatedly stressed the procedural autonomy of national legal systems and if, as DirectEffect suggests, EU law is an integral part of national law, it ought to be for the national courts to determine the remedy (see RemediesInEULaw for a discussion of this point). This point was stressed by the member states in Francovitch and again in FactortameIII1996 (see below).
However, the ECJ pointed out that the ECTreaty makes breaches of EU law by the Community justiciable in the ECJ (Art. 215), and it ought not to make a difference to the individual whether his losses are caused by the Community or the member state. Under Art. 215, the ECJ is required to determine the Community's non-contractual liability in accordance with principles common to the member states, and the ECJ stated that it would do the same in cases of state liability.
In Francovitch, the ECJ stated three conditions that had to be satsified for the state to be held liabile for losses following from non-implementation of a directive:
The Francovitch decision accepts that the state can be liable for other breaches of EU law than non-implementation, but says very little about the criteria for the determination of liability, or the assessment of damages.
In Factortame III the conditions for liability in the more general case were extended from the Francovitch criteria as follows:
The ECJ went on to define ``sufficiently serious breach'' as one in which the member state ``manifestly and gravely disregarded the limits of its discretion''. A breach would always be manifest and grave if it persisted even following a judgement that the member state was in breach of an EU obligation, or if it had received a preliminary ruling to that effect.
In neither Factortame III, or Brasserie du Pecheur_, decided at the same time, did the ECJ attempt to quantify the damages that would be awarded. It refered instead to its earlier decisions on remedies, indicating that the award must be equivalent to one that would be obtained if there were a similar breach of national law, and effective to ensure that EU law was observed. There was no objection, in principle, to member states' imposing limitations on damages, or rules about mitigation of losses, or time limits within which actions should be started.
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