Faccini Dori / Recreb Srl decision

In the Paola Faccini Dori / Recreb Srl decision of 1994, the ECJ dealt with the conflict between a national legal system and the law of the European Union as well as the horizontal direct effect of directives .

Facts and subject of dispute

A contract for an English-language distance learning course was signed between the private educational institute Interdiffusion Srl and the private person Paola Faccini Dori at Milan Central Station . Ms. Faccini Dori canceled her order by registered mail, but was then informed that Interdiffusion had assigned a claim against her to Recreb Srl. Ms. Faccini Dori stated that she had a right of withdrawal within 7 days under Directive 85/577 / EEC on distance contracts for consumers. However, the Italian Parliament had not yet taken any measures to transpose the EU directive into national law.

As a consequence, the Italian Court of Justice ordered Giudice Conciliatore di Firenze to pay the language course fee, including interest and costs. Paola Faccini Dori objected and the Italian court referred the case to the ECJ .

The decision of the ECJ

The European Court of Justice found that Ms. Faccini Dori had a right of withdrawal under the directive, the provisions of which were unconditional and sufficiently precise, but in the absence of a national transposition law she did not invoke the EU directive itself in a lawsuit against another private party could. This followed from Article 189 of the EC Treaty (now Article 288 TFEU ): "The Directive is binding on each Member State to which it is addressed as regards the result to be achieved, but leaves the choice of form and means to the national authorities. "

However, the national court would be obliged to interpret national law as much as possible in line with the purpose of the EU Directive. In addition, the state would have to compensate for the damage caused by not implementing the law. With this, the ECJ opposed the previous assessment of the Advocate General Lenz, who had advocated a horizontal effect of directives, i.e. the possibility of referring directly to the text of the directive in complaints between private individuals.

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24 To extend that case-law to the field of relations between citizens would mean granting the Community the power to impose obligations with direct effect on the citizens, although it may only do so where it has been given the power to issue regulations. 25 It follows that, if the measures transposing the directive have not been adopted within the prescribed period, the consumer cannot rely on the directive itself and invoke a right of withdrawal before a national court vis-à-vis the trader with whom he has concluded a contract. [...] 27 In addition, in the event that the objective prescribed by the Directive cannot be achieved through interpretation, it should be noted that Community law, in accordance with the judgment of 19 November 1991 in Joined Cases C-6/90 and C-9 / 90 (Francovich and Others, 1991 ECR I-5357, paragraph 39) obliges the Member States to compensate citizens for damage caused to citizens by failure to transpose a directive, provided that three conditions are met. First of all, the aim of the directive must be to confer rights on citizens. It must then be possible to determine the content of these rights on the basis of the directive. Finally, there must be a causal link between the breach of the obligation imposed on the state and the damage suffered. 28 The purpose of the directive on off-premises contracts is undeniably to confer rights on citizens, and it is equally clear that the minimum content of those rights can be determined on the basis of the directive alone (see paragraph 17 of this judgment). 29 If there was damage and that damage had been caused by the breach of the obligation imposed on the Member State, the present court would have to ensure the claim of the injured consumer to compensation under national liability law.

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literature

• G De Burca, 'Giving Effect to the European Community Directives' (1992) 55 MLR 215
• Mead, 'The Obligation to Apply European Law: Is Duke Dead?' (1991) 16 ELR 490
• Greenwood, Effect of EC Directives in National Law [1992] CLJ 3
• P Craig, Directives: Direct Effect, Indirect Effect and the Construction of National Legislation (1997) 22 ELR 519, 530-3

Individual evidence

1. ↑ dejure.org: Art. 288 (ex-Article 249 of the EC Treaty). In: dejure.org. Retrieved July 1, 2019 . 
2. ↑ Prof. Dr. Matthias Pechstein: The Faccini Dori case. 2007, accessed July 2, 2019 .