The Case of State Liability: 20 Years after Francovich

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Nearly twenty-two years ago, in January , a drunk and uninsured driver Whitty drove his van at speed on a twisty road and crashed in Tallaght, Dublin. Four passengers were sitting in the rear of the van, not in seats but sitting unrestrained in the goods compartment. One of them, Ann Marie Farrell, was killed.

Under Irish law at the time, there was in fact no obligation for a driver to have insurance to cover passengers in a part of the vehicle that was not designed and constructed with seating accommodation, and so MIBI was under no liability under Irish law to compensate her.

The question then arose as to whether Ireland had complied with its obligations under the various European directives relating to compulsory motor insurance. The Irish legislative position is that, by s. As it happens, I was second junior counsel to the MIB at first instance in Mighell for the European law arguments — for a very nominal brief fee as I was still a pupil — but sadly my services were not required for the multi-handed trip to the Court of Appeal.

He said, relying on an ECJ decision called Wagner Miret , that it was wrong to base a decision on direct effect on what had been done in a particular member state to implement the directive, since it was open to the UK government to fulfil its obligations with or without the MIB. The claimant argued, and he accepted, that European law had moved on from Wagner Miret and that the relevant directive could have direct effect since the UK had designated the MIB as the body for implementing the directive.

However, he said that the MIB was not an emanation of the state. Flaux J said that providing compensation to victims of uninsured drivers was a public service, but there was no state control of the way that the MIB carried out its functions, nor were there any special powers — the Road Traffic Act provision did not give powers to the MIB. Less than 3 months after Byrne , a circuit judge in Canterbury CC referred questions arising in a credit hire dispute involved an uninsured driver to the ECJ, including the question of direct effect and emanation of the state McCall v Poulton.

He said that the ECJ had moved away from a rigid interpretation of the criteria in Foster v British Gas — the emphasis now appeared to be on whether the body had been given responsibility for providing a public service.

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The state had control of the requirements of insurance that MIBI had to cover when insurance was absent, and the statutory basis of MIBI membership for participation in the Irish motor insurance market showed that it was not a typical private body entering obligations voluntarily. One added feature, not found in the UK MIB agreement, was that in some circumstances where there was a dispute between a claimant and MIBI, the relevant government minister could decide the issue. Even if the Foster three-part test had to be applied rigidly, he would have reached the same result and the opposite conclusion to Flaux J.

In its ruling, the ECJ has looked again at Foster. So therefore, said the ECJ, direct effect was possible against a body that did not have all the characteristics of the tripartite test. Therefore the directive could be relied upon directly against MIBI. The Commission was at pains to stress at the hearing that it did not propose that in this case the Court should rule on the general question whether failure to implement a directive which does not have direct effect may give rise to an action for damages.

On the contrary, the Commission' s argument is based on a detailed and meticulous examination of the directive in question. It is based on the particular features of that directive. The Commission submits that a distinction should be drawn between an action for payment and an action for damages.

Its view, in order for an action for payment to be successful it must be shown that three sets of rules have "direct effect"; they are the following:. Conversely, again in the Commission' s view, in an action for damages against the State it is not necessary to show that the third set of rules has "direct effect", since the person liable in such a case is by definition the State. Leaving aside the fact that it seems to me inappropriate to speak of "direct effect" in relation to each of those three sets of rules taken in isolation and that it would be more correct to use the expression "unconditional and sufficiently precise provision", I do not quite understand the Commission' s reasoning.

Even if one were to accept its premiss that in the context of this directive the scope of the rights of the creditors is determined in an unconditional and sufficiently precise manner, there is no escaping the need to decide once and for all, that is to say independently of the particular circumstances, whether Member States can incur liability for failure to implement a directive.

In my view, therefore, the problem raised here is indeed whether, generally speaking, a national court may be required by virtue of Community law to hold the State liable where failure to implement a directive which does not give rise to direct effect has caused loss or damage to an individual.

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In light of the 20th anniversary of the ruling in Francovich, Michael Haba analyzes the principle of Member State Liability, which provides a right to damages. An assessment 20 years after Francovich' () 49 Common Market Law is that Member State liability, first established 20 years ago in the Francovich case, .

In their submissions to the Court the German Government, the United Kingdom and the Italian and Netherlands Governments ruled out the obligatory reparation by virtue of Community law of loss and damage caused not only by failure to implement a directive such as that in issue here but also by the breach of provisions of Community law which are directly applicable or have direct effect.

Since they based their entire argument on the case-law of the Court of Justice on such provisions, it is that case-law that we must examine first of all. The case-law of the Court of Justice on provisions which are directly applicable or have direct effect. It is a matter of ensuring the "full force and effect" of Community law, and any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law or a fortiori prevent it from having full effect are incompatible with the requirements inherent in the very nature of Community law.

National courts must meet their obligation to ensure effective protection of the rights which individuals derive from Community law. Where the application of national rules contrary to directly applicable Community law has resulted in the levying of sums of money from individuals, the Member State must, in accordance with the Court' s.

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I can see no crucial difference between an action for repayment and an action for damages, since in both cases it is a matter of making good a wrong caused by a breach of Community law. It follows from the foregoing that the possible compensation of an individual for loss or damage suffered as a result of the breach of a provision of Community law with direct effect has its foundation in the Community legal order itself. Accordingly, if the payment of compensation is the sole means in the particular circumstances of ensuring effective protection, the Member State is under an obligation by virtue of Community law to make available to individuals an appropriate remedy enabling them to claim compensation.

The four governments which submitted observations argued, however, that not only does the Court in its case-law, refer to national law with regard to the detailed rules to which possible actions against the State for reparation may be subject but that even the question of principle whether such actions may be brought is a matter of national law. According to those governments, if the national legal system is decisive in relation to a provision which has direct effect, it must a fortiori be decisive with regard to provisions which do not.

In that judgment the Court held that.

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That case concerned an infringement of a regulation on the common organization of agricultural markets. It is true that the Court referred to the "provisions of national law on the liability of the State". The fact remains that it held that the State is liable to the injured party in respect of the consequences for him or her of the breach of Community law. It seems to me that the Court thus laid down the principle that the State has an obligation to make good the loss and damage caused, leaving it to national law to deal with the details.

20 Years after Francovich

If it had wished to leave the question of principle to national law as well it would certainly have said so in clear terms, since one of the questions referred by the national court in that case sought expressly to determine whether such a principle existed in Community law see the fifth question, [] ECR 47 , and both the plaintiff in the main proceedings 11 and the Commission 12 clearly stated their views to that effect.

As for the other judgments to which the governments referred, in particular at the hearing, I do not think they need necessarily be interpreted in the sense argued for either. Indeed, it is significant that in their written observations the plaintiffs in the main proceedings and the Commission on the one hand and the United Kingdom and the Netherlands Government on the other all cited those same judgments in support of divergent if not contrary propositions. In paragraph 5 of its judgment in that case [] ECR the Court did, it is true, make the statement cited above, which some would argue shows that as Community law now stands the liability of the State for failure to comply with its Community obligations is a matter for national law alone.

It is quite obvious, however, that the Court referred to the national legal system of the Member States only with regard to the designation of the courts having jurisdiction and the procedural rules, which necessarily implies a prior obligation on the part of the Member States and in particular their courts to ensure legal protection of the rights which Community law grants to individuals. That national law cannot go so far as to challenge the very principle of the obligation of the Member State to ensure the safeguard of the rights which individuals derive from Community law is confirmed by the fact that the Court stated that the procedural rules, as fixed by national law, must not make it.

Furthermore, in referring to Articles to and of the Treaty, under which any necessary measures may be taken to remedy differences between the relevant provisions laid down by law, regulation or administrative action in Member States, the Court seems to me to have implicitly held that the question of principle whether a Member State can be liable is a matter for Community law. In so doing, it held in any event that Community law may provide a basis, if not for the creation of new remedies other than those established by national law, then at least for the adjustment and interpretation of existing national remedies so that they can be used to safeguard the rights which individuals derive from Community law.

It is true that the Court stated in that judgment that the Treaty. I therefore consider that a Member State cannot object to the bringing of an action for damages against the State in respect of the infringement of a right granted to individuals directly by Community law on the ground that its national legal system recognizes the principle of immunity of the public authorities, in particular the legislature; once the action for damages exists as a form of action, a Member State can no longer rely on the status of the person alleged to be liable in order to deprive individuals of the possibility of bringing such an action and thus impair the effectiveness of Community law with direct effect.

Indeed, the context we are dealing with here is completely different from that in which the theory of the immunity of the State in its capacity as a legislator was developed in certain Member States. The Commission correctly pointed out at the hearing that in national law there can hardly be a situation where not only is the legislature under the obligation to enact a law, not only is it possible to determine with a sufficient degree of precision what it must do, but in addition the legislature must act within a certain period. In my view it is not excessive to say that in relation to the transposition of directives the legislature is in a situation close to that of the administration responsible for the implementation of the law.

Nor can any argument be derived from the reference made by the Court to the conditions concerning admissibility and procedure where it is a matter of ensuring observance of national law.

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First of all, problems of admissibility and procedure arise only in relation to an existing remedy. The Court could thus confine itself to stating that in such a case it must be possible to exercise that right of action under similar conditions in the context of the Community legal order. In this case, similarly, there seems to be no doubt as to the existence of an appropriate remedy. It follows from the foregoing that it cannot be inferred from the judgment cited above that Community law can in no circumstances require a Member State to make remedies available to individuals which will enable them effectively to enforce the rights which they derive from Community law when similar remedies either do not exist or are not accessible under the same conditions at the national level.

Indeed, the second paragraph of Article of the Treaty presupposes the existence of such remedies. Nor can convincing objections be derived from the two other judgments cited in particular by the German Government. The Granaria case, however, had several special features which must be borne in mind in assessing its exact significance.

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First of all, it in fact concerned liability for the loss and damage caused by Community legislative acts which had been declared invalid. The question of the payment of compensation by a national agency arose only because it had taken steps in application of a Community regulation which was subsequently found to be unlawful.

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The Court stated unequivocally that so long as the regulation had not been declared unlawful, the national agency could not do other than apply it. That consideration led Advocate General Capotorti to state that. Finally, the Court pointed out that the invalidity of the regulation in question was not sufficient to render the Community liable under the second paragraph of Article of the Treaty.

In that context it is entirely normal that if the question of the possible liability of the national agency were to be raised before a national court that court would be obliged to assess the case in accordance with national law, particularly since the application of the second paragraph of Article falls within the exclusive jurisdiction of the Court of Justice. I find that judgment interesting also in so far as it is an illustration of the manner in which Community law may affect national remedies: a judgment of the Court of Justice holding that the Community is not liable under Article of the Treaty precludes an action for compensation against the State based on the same grounds as the action dismissed by the Court see also paragraph 29 of the judgment.

However, what seems to me to be more important in the present context is the fact that the Court observed first of all that. It seems to me to follow clearly from that statement that a Member State is under an obligation to provide the necessary legal means to enable individuals to claim repayment of charges paid contrary to Community law and, accordingly, to enjoy the full benefit of the rights granted to them by Community law. That is also confirmed by the fact that the Court finally held in that case that a Member State cannot make the repayment of such charges subject to rules which make it virtually impossible,.

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According to the Court, even the fact that those restrictive conditions apply to all national taxes, charges and duties is not a reason for withholding the repayment of charges levied contrary to Community law see paragraph 17 of the judgment. None of the judgments relied upon by the governments which submitted observations to the Court thus provides a sound basis for their view that it is the national law of each Member State alone that must determine not only under what conditions but also whether a Member State can be held liable and obliged to make good the harm caused to individuals as a result of its infringement of the rights which they derive from Community law.

In that judgment the Court stated first of all that. It went on to consider the conditions under which national courts may provide such interim protection, that is to say, in that case, order the suspension of the enforcement of a national administrative measure based on a Community regulation in view of doubts held as to the validity of that regulation, and observed that the conditions concerning the suspension of enforcement of administrative measures differ according to the national law governing them,.

The Court finished by establishing such uniform conditions for the grant of relief, relying on those applicable where the Court itself is seised of an application for suspension of the operation of a measure pursuant to Article of the EEC Treaty.

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It is true that the Zuckerfabrik cases concerned the suspension of the operation of a national administrative measure adopted in implementation of a Community regulation in view of the existence of doubts as to the validity of that regulation.