Evaluate the developing case law of the Court of Justice with respect to its application of the principle of State liability to situations in which a Member state has failed to fulfil its obligations concerning the transposition of a Directive into nation

Extraits

[...] Then in a second part I shall explain the context and consequences of the application of a strong principle of state liability developed by the Court. And I shall finally explore the following case law reframing the latter principle in a third part. I Direct effect and Article 228[6] : the first steps on the way to an application of a State liability Article ex-171 of the Treaty[7] provided that the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty, the State shall be required to take the necessary measures to comply with the judgement of the Court of Justice'. [...]

[...] Therefore the Court establish tree conditions to fulfil : the result laid down by the directive involves the attribution of rights attached to individuals, the component of those rights must be capable of being identified from the provisions of the directive, and there must be a causal link between the failure by the member state to fulfil its obligations and the damage suffered by individuals. This ruling constituted a departure from the previous Court's approach to the provision of national remedies for breach of Community law : according to Craig and De Burca, the Court had not in the past required the creation of new national remedies for breach of Community law, although Factortame I[19] it had required something very close to this'. [...]

[...] At the end of this developed case law was the indirect effect theory leading to the end of the vertical / horizontal direct effect issue. The Court choose to delegate powers to appreciate the conformity of a directive to a German national jurisdiction. But still the problem of claiming direct compensation for not proper implementation existed. The only way to put an end to this was to go for strong and full principle of non-contractual State liability. II A strong principle of State liability as an end to the issues of the previous case law The previous case law drove the Court to set up a full state liability for non implementation of directives, based on a non-contractual liability. [...]

[...] And on the other hand it generalized the principle giving it a broad scope stating that the latter liability could be caused by any institutional sources of infringement, such as Member States or any other bodies of the Community. This matter of fact make some authors view the origin of a generalized liability for Member States in the Francovich case itself[22]. Having said that, the Court needed to adapt its Francovich ruling to cases where Member States have a margin of appreciation in the implementation, as to definitively set out a liability that could work in a non-proper implementation (i.e. [...]

[...] Now article 228 of the EEC Treaty, post-Amsterdam numbering. See Christine BERTRAND The Member State liability for failing of directives implementation, Revue du Droit Public et de la Science Politique, Dalloz [9]Article 249 (ex-189) of the EC Treaty, post-Amsterdam numbering. Case 41/74 [1974] ECR 1337. EU LAW, Weatherhill and Beaumont, Penguin books ltd, London Case 148/78 Pubblico Ministero v Ratti, [1979] ECR 1629. Case 152/84 Marshall v Southampton and SW Hampshire Health Authority [1986] ECR 723. Case 188/89 Foster and Others v British Gaz plc [1990] ECR I-3313. [...]