Edited by Mads Andenas and Camilla Baasch Andersen
Chapter 7: Francovich Liability for Breach of European Union Law
7. Francovich liability for breach of European Union law Gerrit Betlem* UN PEU D’HISTOIRE After a brief historical introduction, this chapter will argue the case for extending the liability of the European Community and its Member States for breach of Community law to breach of European Union law. A number of developments and analogies will be explored – liability for lawful acts, liability of EFTA Member States for breach of EEA law – and their potential as building blocks for the recognition of such an extended EU liability regime will be assessed. Then there is an examination of the current unavailability of direct damages claims before the Community Courts laid down in Articles 35 and 41 TEU and confirmed by the CFI and ECJ in the Gestoras and Segi judgments, as well as the overhaul of this position by the Treaty of Lisbon and the potential relevance of the EU Charter of Fundamental Rights. The rules governing non-contractual liability of Member States of the European Union may be divided in chronological terms into before and after 1991, the year the ECJ handed down one of its most seminal cases: Francovich.1 Before that case, the availability of damages claims against Member States where they were in breach of Community law was discussed in the literature and considered indirectly in the Court’s case law e.g. in the context of infringement actions.2 For many years, it was unclear what legal system should decide not only the actual liability requirements but even whether there should be...
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