Introduction
The statement by Behr that the ruling in Francovich v Italy (Cases C-6/90 and C-9/90) represents the “ultimate consequence” of Case 26/62 Van Gend en Loos reflects a significant perspective on the evolution of European Union (EU) law, particularly regarding the principles of direct effect and state liability. This essay seeks to clarify Behr’s assertion by examining the foundational role of Van Gend en Loos in establishing the direct effect of EU law and tracing the subsequent legal developments that culminated in the Francovich ruling. Through an analysis of primary sources, such as the judgments themselves, and secondary academic commentary, this essay explores how the Court of Justice of the European Union (CJEU) progressively expanded the enforceability of EU rights. It argues that Francovich indeed builds upon Van Gend en Loos by introducing the principle of state liability for breaches of EU law, thereby completing a framework that empowers individuals to seek redress against Member States. The discussion is structured around the landmark principles established in each case, the intervening developments, and an evaluation of Behr’s conclusion.
The Foundation: Van Gend en Loos and the Doctrine of Direct Effect
The CJEU’s ruling in Van Gend en Loos (1963) is widely regarded as a cornerstone of EU law, establishing the principle of direct effect. In this case, the Court held that provisions of EU law could confer rights on individuals that national courts must protect, provided the provisions are clear, precise, and unconditional (CJEU, 1963). This decision transformed the Treaty of Rome from a mere international agreement into a legal order directly applicable within Member States. The significance of this judgment lies in its creation of a mechanism whereby individuals could invoke EU law against national authorities, thus fostering the integration of EU legal norms into domestic systems.
The principle of direct effect was revolutionary because it empowered individuals as active participants in the enforcement of EU law, rather than relying solely on intergovernmental mechanisms (Craig and de Búrca, 2020). However, the initial scope of direct effect was limited to vertical relationships—between individuals and the state—and did not extend to horizontal relationships between private parties. Furthermore, direct effect alone did not address situations where Member States failed to implement EU law or where remedies for breaches were unavailable. These limitations set the stage for subsequent legal developments, which Behr arguably sees as leading to the Francovich ruling.
Intervening Developments: Expanding the Scope of EU Law Enforcement
Following Van Gend en Loos, the CJEU progressively expanded the enforceability of EU law through a series of cases that addressed the gaps in the direct effect doctrine. One notable development was the introduction of indirect effect in Case 14/83 Von Colson and Kamann (1984), where the Court ruled that national courts must interpret domestic law in light of EU directives, even if the directive lacks direct effect (CJEU, 1984). This principle aimed to ensure that EU law could influence national legal systems indirectly, particularly where directives were not sufficiently precise for direct effect.
Additionally, the case of Case 222/84 Johnston v Chief Constable of the RUC (1986) highlighted the importance of effective judicial protection for rights derived from EU law. The CJEU emphasised that national procedural rules must not render it impossible or excessively difficult to enforce EU rights (CJEU, 1986). These cases collectively demonstrate a trajectory of increasing accountability for Member States and a growing emphasis on ensuring that individuals could effectively access remedies for breaches of EU law. As Weatherill (2016) notes, this period reflects the CJEU’s commitment to the principle of effectiveness, ensuring that EU law is not merely theoretical but practically enforceable. However, a significant gap remained: what remedy could individuals seek when a Member State’s failure to implement EU law caused them harm?
Francovich: The Pinnacle of State Liability
The Francovich case addressed this critical gap by establishing the principle of state liability. In Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy (1991), the CJEU ruled that Member States could be held liable to pay compensation to individuals who suffered loss due to the state’s failure to implement an EU directive (CJEU, 1991). The case arose from Italy’s failure to transpose a directive on the protection of employees in the event of insolvency, leaving workers like Francovich without guaranteed payments. The Court held that state liability applies when three conditions are met: the directive must confer rights on individuals, the content of those rights must be identifiable, and there must be a causal link between the state’s failure and the damage suffered.
This ruling marked a significant leap from Van Gend en Loos because it provided a concrete remedy—financial compensation—for breaches of EU law. As Dougan (2011) argues, Francovich transformed the relationship between individuals and Member States by imposing a direct financial penalty on states for non-compliance, thereby incentivising adherence to EU obligations. While Van Gend en Loos empowered individuals to invoke EU rights, Francovich ensured that they could seek redress when those rights were violated due to state inaction. Therefore, Behr’s description of Francovich as the “ultimate consequence” likely stems from this completion of a remedial framework that began with direct effect.
Evaluating Behr’s Conclusion: Continuity and Culmination
Behr’s assertion that Francovich is the ultimate consequence of Van Gend en Loos appears to be grounded in the logical progression of EU law from establishing individual rights to ensuring their effective enforcement. Van Gend en Loos laid the foundation by recognising individuals as bearers of EU rights, while subsequent cases like Von Colson and Johnston refined the mechanisms for enforcement through doctrines like indirect effect and effective judicial protection. Francovich, however, represents a culmination by addressing the remedial gap, ensuring that Member States bear financial responsibility for non-compliance.
Nevertheless, it is worth considering whether Francovich is truly the “ultimate” consequence or merely a significant milestone in an ongoing evolution. Later cases, such as Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame (1996), further refined state liability by extending it to breaches of Treaty provisions and national legislation (CJEU, 1996). This suggests that while Francovich is a critical development, the CJEU’s jurisprudence continues to evolve. Despite this, Behr’s perspective holds weight in the sense that Francovich represents a pivotal moment where the principles initiated by Van Gend en Loos were fully realised in terms of individual remedies against Member States.
Conclusion
In conclusion, Behr’s characterisation of Francovich as the ultimate consequence of Van Gend en Loos is a compelling interpretation of the development of EU law. Van Gend en Loos established the principle of direct effect, empowering individuals with enforceable EU rights, while subsequent cases built mechanisms to ensure those rights were practically applicable. Francovich completed this trajectory by introducing state liability, providing a direct remedy for breaches caused by Member State inaction. Although the evolution of EU law continues, Francovich undeniably marks a significant realisation of the principles first articulated in Van Gend en Loos. This progression underscores the CJEU’s commitment to ensuring that EU law is not only a theoretical framework but a tangible source of rights and remedies for individuals, highlighting the transformative impact of judicial innovation on European integration.
References
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th ed. Oxford University Press.
- Dougan, M. (2011) National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation. Hart Publishing.
- CJEU (1963) Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration. ECLI:EU:C:1963:1.
- CJEU (1984) Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen. ECLI:EU:C:1984:153.
- CJEU (1986) Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary. ECLI:EU:C:1986:206.
- CJEU (1991) Cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and Others v Italian Republic. ECLI:EU:C:1991:428.
- CJEU (1996) Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany and The Queen v Secretary of State for Transport, ex parte Factortame Ltd and Others. ECLI:EU:C:1996:79.
- Weatherill, S. (2016) Cases and Materials on EU Law. 12th ed. Oxford University Press.
