State liability

Question 1

Francovich v Italy

Answer 1

Created concept that states can be liable for monetary loss of individuals by their failure to implement EU law. Three criteria:

1. Law must confer individual rights
2. Those rights must be ascertainable
3. There must be a causal link between the failure and the loss

Question 2

Factortame

Answer 2

Developed the principle as devised in Francovich, stating that

1. It applied to all EU law, not just Directives
2. It applied both when laws were directly effective and when they weren’t, it is an additional remedy
3. It can only be used when the breach is “sufficiently manifest and grave”

Question 3

Dillenkofer v Italy

Answer 3

What is “sufficiently manifest and grave”? A failure to implement a Directive is likely to meet this criteria but poor implementation is probably not enough.