25 Years after Francovich : developments in the notion of state liability, particularly in relation to EU directives

Abstract

The Francovich judgment was born out of a strong need to improve the effectiveness of EU law. It was widely considered that the remedy provided by the European Court would address the persistent problem with regard to the application of EU law within the Member States. However, the issue remains, particularly with regard to directives, where Member States sometimes show a complete disregard of their duty to transpose. It will also be shown that the state liability remedy is not even an effective enforcement mechanism since it does not provide individuals with rights which are denied to them, but, on the contrary, it has been reduced to a mere damages action against the state. Coupled together these problems reveal that the system of state liability is not effective. By evaluating the reasons for this deficit the thesis tries to come up with solutions for the future, suggesting a remodelling of the system of enforcement in favour of more bottom-up approaches. It is argued that the granting of horizontal direct effect for directives might be the way forward, and that the enforcement of Union law should be brought back from the public sphere into private law.