Case-law aspects concerning the regulation of states obligation to make good the damage caused to individuals, by infringements of european union law

• Author: Roxana-Mariana Popescu
• Position: Senior Lecturer, Ph.D., Faculty of Law, 'Nicolae Titulescu' University, Bucharest, Romania
• Pages: 41-51

Roxana-Mariana Popescu

41

LESIJ NO. XIX, VOL. 1/2012

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CASE-LAW ASPECTS CONCERNING THE REGULATION OF STATES

OBLIGATION TO MAKE GOOD THE DAMAGE CAUSED TO

INDIVIDUALS, BY INFRINGEMENTS OF EUROPEAN UNION LAW

Roxana-Mariana POPESCU∗

Abstract

The priority principle of EU law in relation to the internal law of the Member States, a

principle enshrined by the Court of Justice case-law and the principle of direct effect allow the

national court to give full effect to EU law. Breaching the EU law by Member States draws under

certain conditions their responsibilty for the breach thereof. Unlike public international law, the

constitutive treaties do not contain provisions relating to liability of Member States for breach of EU

law. As in other cases, the Court was the one that, over time, has defined a right of redress, which

has its foundation in EU law and in the conditions necessary to engage the victims' right to repair.

Keywords: Liability of Member States, EU law, priority principle of EU law, Court of

Justice, case-law aspects.

1. Introduction

The priority principle of EU law in relation to national law of Member States,

jurisprudentially enshrined by the Court of Justice, and the principle of direct effect allow the

national court to provide absolute effect to EU law. The non-compliance with EU law, by Member

States, draws, under certain conditions, the states’ liability for its breach.

Unlike public international law, the constituent Treaties do not contain provisions relating to

the liability of Member States for breaching EU law.

As in other cases, the Court of Justice is the one that, over time, has defined a reparatory law,

which is grounded on EU law and on the necessary conditions in order for the right to compensation

to be committed, in the victims’ benefit. Thus, the Court has supplemented this protection of

litigants’ rights, by enshrining the principle of state liability for breaching EU law. This principle

applies when a Member State fails to transpose or when it incorrectly transposes an EU rule, but also

for the breach of EU rules, with or without direct effect.

Next, we shall highlight the main moments in the consecration, by judicial way, of the

principle of states obligation to make good damage caused to individuals, by breaches of EU law.

2. Francovich Judgement1

The Court of Justice enshrined for the first time, the principle of Member States liability for

the breach of EU law in Francovich2 Judgement, from 1991.

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∗ Senior Lecturer, Ph.D., Faculty of Law, “Nicolae Titulescu” University, Bucharest, Romania (e-mail:

rmpopescu@yahoo.com).

1 ECJ Judgement of 19 November 1991, Francovich and Bonifaci v. Italy, C-6/90.