The Gazette 1992

GAZETTE

JUNE 1992

Consequences of Francovich and Emmott

commenced at national law, provided relief is available on a non- discriminatory basis. 38

States to pay compensation for such damage since among these appropriate measures is the obligation to eliminate the consequences of a breach of Community law. 42 As state responsibility flows from the requirement of Community law, in particular Article 189 of the EEC Treaty, that Member States take all necessary measures to attain the result prescribed by a directive, the conditions under which damages may be obtained must also depend upon the nature of the breach of Community law giving rise to the damage. 43 Community law affords a right to compensation when three conditions are satisfied. Firstly, the aim of the directive must be to create rights for the benefit of individuals. Secondly, the content of those rights must be identifiable from the provisions of the directive. Thirdly, there must be a link between the Member State's breach of its obligations and the damage sustained by the injured party. 44 In the absence of Community rules, it is for national law to designate procedures whereby individuals can protect their rights at Community law, provided neither the substantive nor the formal conditions are less favourable than those governing similar claims at national law nor make it practically impossible or excessively difficult to obtain such compensation. 45 Here Italy had failed to implement a directive which prescribes that employees are to be guaranteed payment of amounts due as unpaid wages. Since this right can be identified from the provisions of the directive, national courts must ensure compensation is available for damage flowing from a failure to incorporate the provision into national law. Thus, Italy had to pay compensation for damages sustained by individuals arising from its failure to implement Directive 80/987. 46

Under the Defective Products Directive 47 no-fault liability is

imposed upon producers of defective products. Although Member States were obliged to implement this directive by 30 July, 1988, Ireland only did so on 16 December, 1991. 48 Assume a plaintiff claimed damages for injuries allegedly caused by a defective product in January, 1989. He adduced proof of every aspect of his case save that the defendant, another private person, was at fault. He lost his action, appealed this decision unsuccessfully and was twice condemned in costs. If the directive had been implemented when the action was heard, his claim would have succeeded. Assuming the directive did not give rise to direct effect, had our hero any recompense? Prior to Francovich, as a matter of Community law, the answer would have been no. Apart from the perceived lack of state responsibility, 'horizontal' directives, i.e. those which impose rights and duties upon all persons, including the State, in their dealings with one another, could only be directly enforced against the State or an emanation thereof and only where they gave rise to direct effect. 49 Since the three conditions for liability set out in Francovich would appear to have been satisfied, it now seems that a litigant could contemplate the successful prosecution of an action against Ireland for compensation for the loss he sustained as a result of the failure to implement the Product Liability Directive into Irish law. In deciding when to commence proceedings, the plaintiff could also rely on Emmott to argue that time does not begin to run against him until the implementation of the directive i.e. 16 December, 1991. These decisions greatly enhance the means given to private persons to enforce and

"Where, as a result of an action taken against a Member State, the Court of Justice finds there has been a breach of this obligation, the Member State is obliged to take all appropriate measures to put its house in order. This may require payment of compensation for damage sustained by private persons arising from the failure to implement Community legislation." In its judgment the Court first recalled that national courts had a positive duty to apply Community law, to ensure it be given full effect and to uphold rights granted to individuals thereunder. 39 The full effect of Community law would be brought into question and the protection of rights thereunder seriously weakened if individuals were unable to obtain compensation where those rights were infringed by a violation of Community law imputable to a Member State. 40 The availability of compensation from a Member State is particularly important where, as in the case of directives, the full effect of Community law is conditional upon action by the State. Without such action individuals cannot obtain their rights at Community law before national courts. It is thus inherent in the TVeaties that a Member State is responsible for damage caused to individuals flowing from its violation of Community law. 41 Article 5 of the Treaty, by virtue of which Member States are obliged to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from Community law, also imposes an obligation upon Member

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