Francovich decision

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The Francovich decision (ECJ, C-6/90 and C-9/90, Coll. 1991, 5357ff.) Of the European Court of Justice (ECJ) of November 19, 1991 is an important decision in the field of European law .

history

The Francovich decision was based on the following facts: Directive 80/987 was intended to guarantee workers at Community level minimum protection in the event of the insolvency of their employer, without prejudice to more favorable provisions in the Member States . In this respect, a public fund should be set up, with the member states having leeway in structuring it. To this end, the Directive provided, in particular, special guarantees for the satisfaction of unfulfilled employee claims to remuneration.

Mr. Francovich had worked for a company in Vicenza , but only occasionally received part payments on his wages. He therefore brought an action before the Pretura Vicenza, which ordered the defendant to pay around 6 million lire . As part of the foreclosure , the bailiff of the Vicenza Tribunal recorded a record of an unsuccessful attachment. The applicant then asked the Italian State for the guarantees provided for in Directive 80/987 and, in the alternative, for damages.

However, Italy had failed to create such a public fund and the action was initially dismissed. Despite the expiry of the transposition period, a claim to the guarantees could not be derived from the directive itself, since it was too vague and therefore did not meet the requirements for direct applicability . The question therefore arose whether the failure to transpose the directive at least justified a claim for damages against Italy.

decision

The ECJ thus developed the institute of unwritten compensation claims for violations of Community law and established the following criteria:

  • A policy was incorrect or not implemented
  • The purpose of the violated legal norm is to give rights to the individual
  • The violation is sufficiently qualified (violation of Community law must be obvious and significant)
  • The non-implementation must be causal for damage.

In this respect, the plaintiffs were entitled to a claim for damages against Italy.

As a justification, the ECJ cited the principle of community loyalty from Art. 4 Para. 3 TEU [ ex Art. 10 EGV], and that the enforcement of Community law would be hindered by the fact that a member state would not implement a directive. In addition, it is a principle of Community law that the member states are obliged to compensate for the damage suffered by individuals as a result of violations of Community law that are attributable to these states.

Experts argue about the relationship between national public liability claims and newly developed public liability claims . There was agreement that the individual was entitled to a claim, but it was unclear whether this claim follows from a modified national official liability claim ( § 839 BGB, Art. 34 GG) or should be based on the unwritten requirements of the ECJ.

literature

  • Christian Baldus, Rainer Becker: “Quasi-Aid” instead of horizontal direct effects? - On the compatibility of the Francovich case law of the ECJ with the legal concept of the internal market . In: Europarecht, 34th vol. (1999), no. 3, pp. 375-394.
  • Cornelia M. Binia: The Francovich judgment of the European Court of Justice in the context of German state liability law . Frankfurt am Main u. a .: Lang 1998
  • Hans-Heiner Gotzen: The “Francovich” judgment of the ECJ . In: Verwaltungsrundschau. Journal for administration in practice and science, 40th year (1994), p. 318f.
  • M.-PF Granger: National applications of Francovich and the construction of a European administrative jus commune . In: European law review, Vol. 32/1 (2007), pp. 157-192.
  • Carol Harlow: "Francovich" and the problem of the disobedient state . In: European law journal, ISSN  1351-5993 , Vol. 2 (1996), pp. 199-225.
  • Christoph Henrichs: Liability of the EC member states for violation of community law. The impact of the Francovich ruling of the European Court of Justice on the legal systems of the Community and the Member States . Baden-Baden: Nomos 1995.
  • Martin W. Huff: Francovich or what does the citizen get from the community . In: European Journal for Business Law (EuZW), 6th year (1995), no. 6, p. 161.
  • Tobias Jaag: The Francovich case law of the European Court of Justice . In: Swiss Journal for International and European Law, 6th year (1996), pp. 505–526.
  • Stephan Keiler, Christoph Grumböck (ed.): ECJ case law up to date. Jurisdiction of the Courts of the European Communities according to policies . Vienna: Linde Verlag 2006, pp. 343-348 (Author: Andreas Auer).
  • Sofia Moreira de Sousa, Wolfgang Heusel (ed.): Enforcement of community law from Francovich to Köbler. Twelve years of state liability under Community law . Cologne: Federal Gazette 2004.

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