European Community Law: New Remedies, New Directions?; Joined Cases C-6/90 and C-9/90, Francovich and Bonafaci v Italy1

Abstract

From an early stage in its jurisprudence, the European Court of Justice has endeavoured to secure the binding nature of Community law in conjunction with the protection of individual rights. Delving into the Court's case law, we see a host of reasons set out for allowing individuals to pursue their rights in the national courts against both the Member States and private parties: the creation of a new legal order, the transfer of sovereign rights, appeals to uniformity and efficacy.2 Through the doctrines of direct effect and indirect effect, individual rights in Community law have evolved to a high degree of protection. But problems arise where Member States are slow to implement Community obligations and where national courts are unable, or unwilling, to interpret national law so as to give effect to the supremacy of Community law. The EC Commission has repeatedly stressed the need to impress upon the Member States the importance of implementing Community law promptly and correctly if the Single Market is to be realised. Recent annual reports on the monitoring of Community law have shown an increased willingness on the part of the EC Commission to commence Article 169 EEC and Article 171 EEC actions against the Member States.3 However, the Interim Report on the implementation of the Single Market programme reveals that there are still long delays in transposing some measures into national law.4 The EC Commission has drawn up guidelines for the monitoring of the implementation of the Single Markets and a variety of measures have been taken to ensure that the Member States implement Community law correctly. Such measures include informing interested parties of the transposition of measures via databases accessible to the public, making texts of national transposition available for scrutiny, encouraging the consolidation of Directives in certain fields and raising awareness of the Member States' rate of transposition through periodic reports and Council discussions. Without the ability of individuals to enforce Community rights in the national courts, the original enforcement mechanisms contained in Articles 169 and 170 of the Treaty of Rome 1957 are limited. Individuals have no part to play in the process6; they cannot compel the EC Commission to commence proceedings by