EU member-state responsibility before individuals for breach of EU law

Abstract

The purpose of this Article is to investigate the process that led to the principle of EU member-state responsibility for infringement of EU law, the content of the said principle, and related conceptual and practical approaches as they have been established in the ECJ case law. EU founding treaties do not provide for member-state responsibility for damage caused to individuals by breach of EU law. Principle of member-state responsibility has been established in ECJ case law in joint cases C-6/90 and C-9/90 Francovich. However the Court rather shortly amended the Francovich standard. What fundamentally differentiates Francovich and the standard announced in joint cases C-46/93 and C-48/93 Brasserie du Pêcheur is the sufficiently serious breach criterion which approximates member state responsibility to the EU responsibility standard.
 The article offers an overview of these changes in ECJ case law and conceptualisation of EU member-state responsibility criteria (confer rights on individuals, sufficiently serious breach, and direct causal link criteria). In its subsequent jurisprudence.
 The article argues that the Court treats the member-state responsibility as extraordinary remedy for sufficiently serious breach of EU law. Therefore, unlike under the initial Francovich approach, not all infringements of EU law give rise to member-state responsibility before private individuals – such responsibility arises only for “sufficiently serious” breaches. The articles dwells upon reasons for such fundamental changes in Court’s jurisprudence. It concludes that such changes purport to strike a fair balance between rights of individual affected by a member-state’s infringement of EU law and inherent member-state’s margin of appreciation in making policy choices.