Francovich v Italy

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

History

The Francovich decision was based on the following facts: The Directive 80/987 should workers at Community level a minimum level of protection in case of insolvency of the employer, without prejudice to the Member States in ensuring favorable provisions existing. In this respect, a public fund should be set up in the configuration, the Member States have leeway. To this end, the Directive provided in particular for specific guarantees of outstanding claims of employees to pay.

Mr Francovich had worked for the company in Vicenza, but only occasionally receive advance payments of his wages. He therefore brought proceedings before the Pretura Vicenza, which ordered the defendant to pay approximately 6 million lire. In attempting to enforce the bailiff of the Tribunale di Vicenza was a protocol on a futile seizure. The plaintiff then requested by the Italian State as provided for in Directive 80/987 guarantees the alternative, compensation.

Italy, however, had failed to provide such a public fund and the action was therefore initially rejected. Despite the expiry of the implementation period entitlement to the guarantees could also be derived from the Directive itself, as this was too vague and therefore did not meet the requirements for direct applicability. Therefore, the question whether the failure to implement the Directive at least established a claim for damages against Italy presented.

Decision

Thus, the ECJ developed the Institute of unwritten compensation claim for breach of Community law and provided the following criteria:

• A directive has been transposed incorrectly or not
• The rule of law infringed is intended to confer rights on individuals
• The breach is sufficiently serious ( breach of Community law must be manifestly and gravely disregarded )
• The non- implementation must be causal for the damage.

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

As justification, the ECJ led to the principle of cooperation in good faith under Article 10 of the EC Treaty, and that it is the enforcement of Community law hindrance that a Member State would not implement a directive. Moreover, it is a principle of Community law that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.

Experts argue about the relation of the national public liability claims in the newly developed public liability claims. It was agreed that the individual has a claim, but it was unclear whether this claim of a modified national official liability ( § 839 German Civil Code, Article 34 of the Basic Law ) follows or should be based on the unwritten conditions of the ECJ.