The Gazette 1992

GAZETTE

JUNE 1992

commenced at national law, provided

relief is available on a non-

discriminatory basis.

"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.

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.

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.

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

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.

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.

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.

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.

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.

Consequences of Francovich and

Emmott

Under the Defective Products

Directive

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.

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.

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

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