2.

Explain and evaluate how the Francovich principle enables individuals to

challenge national law in case of a breach of EU law.

The Francovich Principle refers to the doctrine of state liability, named after the

case of Francovich v Italy, the first case that referenced state liability and established its

function and the conditions required to activate it. Being such an important part of EU

law a tool like this cannot be established in just one case and as such we saw further

expansion, which many describe more as restriction, where it comes to establishing that

state liability is the appropriate action in a case. When it comes to understanding how a

principle like the Francovich one works it helps to know what reasoning the court used

to establish it. First the court referenced the importance of the principle of effectiveness

of EU law, “The full effectiveness of Community rules would be impaired”. 1 The second

reasoning the court used was to establish state liability was on a legal basis. What was

article 5, now article 4(3), of the Treaty on European Union, requires that a MS take all

the measures appropriate to ensure the implementation of community law. This is

known as the duty of loyalty to community law that MS need to respect, if they disregard

the directives, regulations and so forth, that the EU issues then EU Law would hold little

meaning anywhere.

The right to reparations for an individual depends on the nature of the states

breach.2 The ruling in Francovich describes the three conditions that need to be met in

order to determine if the action, or inaction, of the state qualify as a breach and

therefore outlined the basic requirements for an individual to claim state liability. First,

the result prescribed by the directive in question needs to confer a right onto individuals,

1
Francovich paragraph 33
2
Francovich paragraph 38
second, the content of the conferred rights needs to be identifiable and finally there

needs to be a causal link between the state breaching their obligation and the damage

suffered by the injured party as per Factortame III. With the principle of MS liability

established the ECJ then leaves it to national courts to determine the procedural

conditions surrounding the law so long as it is not framed in a way that makes obtaining

reparations overly difficult or essentially impossible. This means that so long as the laws

within the community relating to state liability are, to a degree, reasonable, the EU will

not interfere in the procedures states see fit to develop around it.

As directives, despite their name, lack direct effect, it is on the MS to transpose

the goal of the directive into their own national law. Where an individual believes that

their country has failed to transpose a directive the conditions established in Francovich

build the foundation for an individuals claim against the offending state. This was

expanded in the joint case of C-48/93Factortame III and C-46/93, Brasserie du Pecheur

SA v Bundesrepublik Deutschland, where the courts made two significant changes to

the operation of state liability. First, through the outcome of the cases, they expanded

state liability to cover all areas of EU law rather than only directives, meaning that any

national law that conflicts with community law or a state failing to uphold mandated

community law will be open to a lawsuit through state liability, so long as the conditions

of state liability are satisfied. This notably, means that state liability, through Brasserie

and Factortame, covers not only EU law without direct effect 3 but now also covers

things like treaty law, provisions, and regulations. Things can that have vertical and

horizontal direct effect, ensuring that state liability became an effective tool for

3
Referring to directives
individuals and that it gave further incentive for MS to refrain from breaching community

law as much as possible. Brasserie and Factortame III also came with a new condition

the ECJ decided should be required when claiming state liability, dictating that a claim

must be sufficiently serious, on top of the conditions already laid out in Francovich. 4

Reasonable, that the courts would ask for state liability claims to have some degree of

severity in terms of the breach that a member state makes. However, recall that the

states are allowed to determine the parameters of what meets the conditions for state

liability and this condition in particular, being open to interpretation as to what should be

considered ‘sufficiently serious’ has the ability to make a claim more difficult. For

example, ambiguity in the EU laws could be found to barely apply to a case and lead to

its dismissal despite the size of the impact it may have had on an individual.

State liability is a key concept in the operation of the European Union as is gives

the individuals within the community power to enforce the rights afforded to them. Only

first being solidified as such a tool in Francovich 1991, the laws surrounding its use vary

but are developing almost case by case in order to ensure that its operation meets the

needs of the community. This, and as they5 cite frequently both in cases and in their6

declaration of aims and values, that one of the core principles of EU law; its own

supremacy over national law, be maintained so that the rights and protections it affords

be applied fairly for all the peoples of Europe.

Works Cited

4
Francovich paragraph 75-80
5
The court
6
The European Union as an organization
Treaty on European Union, Article 4

C-46/93 Brasserie du Pecheur SA v Bundesrepublik Deutschland

C-48/93 Factortame III

C-6&9/90 Francovich v Italy (1991) ECR I-5357

European Union, Aims and Values https://european-union.europa.eu/principles-

countries-history/principles-and-values/aims-and-values_en

Ross Malcolm, 'Beyond Francovich' [1993] 56(1) The Modern Law Review 55-73 DOI:  

https://doi.org/10.1111/j.1468-2230.1993.tb02853.x