State Liability for Failure to implement a directive

Question 1

How did this 3rd way come about?

Answer 1

• The third way to avoid the problems of direct effect and directives came in Francovich v Italy 6/90 and 9/90:
  1. The ECJ held that ‘the full effectiveness of [EU] provisions and the rights they recognise would be undermined if individuals were unable to recover damages where their rights were infringed by a breach of [EU] law attributable to a member state…’
  2. So, citizens should be able to sue the state for non-implementation of a directive.

Question 2

In Francovich, the court clarified the conditions giving rise to Member State liability for violation of EU law.
What are these?

Answer 2

1. The rule of law infringed must confer rights on individuals.
2. It must be possible to determine the rights conferred by reference to the directive.
3. There must be a causal link between the damage suffered and the failure to implement the directive.

Question 3

There has been another condition added? What is this and where did it come from?

Answer 3

• The cases of Brasserie du Pechur SA v Germany and R v Secretary of State for Transport, ex parte Factortame 46 and 49/93 have added another condition:
  o That the breach by the MS must be sufficiently serious.
• DillenKoFee v Federal Republic of Germany C-178/94:
  o Suggests that non-implementation is sufficiently serious, so this is like strict liability.