State Liability
-Art.4(3) TEU: Pursuant to the principle of sincere cooperation… Member States shall take
any appropriate measure, general or particular, to ensure fulfilment of the obligations
arising out of the Treaties or resulting from the acts of the institutions of the Union. The
Member States shall facilitate the achievement of the Union’s tasks and refrain from any
measure which could jeopardise the attainment of the Union’s objectives.
-State Liability: When the individual sues the state because of its failure to implement a piece
of legislation where it was obligated to do so and such failure has resulted in damage or loss
for the individual.
--This mainly relates to the implementation of a Directive but not exclusively.
--Case must commence in national court and remedy must be awarded by the national courts.
--It is an independent action from direct and indirect effect.
State Liability
a)Where There is a Complete Failure to Implement a Directive
*-In such a scenario apply Francovich to bring an action forward for state liability.
*Francovich v Italy [1991]: This case concerned employees of a bankrupt company who
were trying to claim wages arrears, something which was guaranteed by a Directive which
Italy had failed to implement. Because they could not sue third former employer (that would
have involved a horizontal direct effect, which is not possible with a Directive), they then
sued the Italian State, claiming that it was at fault because they could not get a remedy.
Held (Legal Principle): The ECJ held that the Italian State would be liable for its failure to
implement the Directive if the following three conditions were fulfilled:
1) The Directive gave rights to the individual.
2) Those rights were identifiable within the wording of the Directive.
3) There was a causal link between the failure to implement and the damage caused to
the individual.
*-Therefore, this is an attempt by the ECJ to fill in the gaps left by direct effect (cant claim
direct effect of a Directive if horizontal) and indirect effect (cannot succeed in indirect effect
if the national legislation is unambiguous). The state however, is still liable for such failure to
implement the Directive.
b)Other Scenarios
**-There are not two different tests for state liability, Factortame builds upon Francovich
therefore, a failure to implement a Directive must also be a sufficiently serious breach
(Dillenkofer: Failure to implement a Directive is in itself a serious breach).
*-Where the MS:
a) Fails to adapt existing legislation, or
b) Incorrectly implements a Directive
-Art.4(3) TEU: Pursuant to the principle of sincere cooperation… Member States shall take
any appropriate measure, general or particular, to ensure fulfilment of the obligations
arising out of the Treaties or resulting from the acts of the institutions of the Union. The
Member States shall facilitate the achievement of the Union’s tasks and refrain from any
measure which could jeopardise the attainment of the Union’s objectives.
-State Liability: When the individual sues the state because of its failure to implement a piece
of legislation where it was obligated to do so and such failure has resulted in damage or loss
for the individual.
--This mainly relates to the implementation of a Directive but not exclusively.
--Case must commence in national court and remedy must be awarded by the national courts.
--It is an independent action from direct and indirect effect.
State Liability
a)Where There is a Complete Failure to Implement a Directive
*-In such a scenario apply Francovich to bring an action forward for state liability.
*Francovich v Italy [1991]: This case concerned employees of a bankrupt company who
were trying to claim wages arrears, something which was guaranteed by a Directive which
Italy had failed to implement. Because they could not sue third former employer (that would
have involved a horizontal direct effect, which is not possible with a Directive), they then
sued the Italian State, claiming that it was at fault because they could not get a remedy.
Held (Legal Principle): The ECJ held that the Italian State would be liable for its failure to
implement the Directive if the following three conditions were fulfilled:
1) The Directive gave rights to the individual.
2) Those rights were identifiable within the wording of the Directive.
3) There was a causal link between the failure to implement and the damage caused to
the individual.
*-Therefore, this is an attempt by the ECJ to fill in the gaps left by direct effect (cant claim
direct effect of a Directive if horizontal) and indirect effect (cannot succeed in indirect effect
if the national legislation is unambiguous). The state however, is still liable for such failure to
implement the Directive.
b)Other Scenarios
**-There are not two different tests for state liability, Factortame builds upon Francovich
therefore, a failure to implement a Directive must also be a sufficiently serious breach
(Dillenkofer: Failure to implement a Directive is in itself a serious breach).
*-Where the MS:
a) Fails to adapt existing legislation, or
b) Incorrectly implements a Directive
