Some 15 years ago, as all law students should know (!), the European Court laid down the principle that an EU Member State could be required to pay damages to any individual who suffers loss as a result of that Member State’s failure properly to transpose a European Directive into domestic law.
This was established in 1995 in a case in which a Sr Francovich won the right to claim damages against the Italian government. The Italian government had failed properly to implement an EC Directive relating to the protection of employees in the event of insolvency of their employer. Sr Francovich lost out as a result and in due course the European Court ruled that he could sue the Italian government for loss he suffered as a result of its failure properly to implement EC law in Italy, subject to three conditions (which in his case were fulfilled) as follows:
- the purpose of the Directive in question must be to grant rights to individuals;
- it must be possible to identify the content of those rights on the basis of the provisions of the Directive;
- there must be a causal link between the breach of the Member State’s obligation and the damage suffered.
In a later case in 2003, the European Court ruled that this Francovich principle should be extended to cover failure by a domestic court properly to apply EU law. The European Court ruled that if a court in a Member State fails properly to apply a Community law which is intended to confer rights on individuals, then provided the breach is sufficiently serious and there is a direct causal link between it and the loss or damage sustained by the injured parties, the Government of the Member State concerned can be required to compensate the individual.
In practice employees in the UK have only very rarely sought to exercise this type of right against the British government. This is no doubt mainly because the British government has tended to err on the side of “gold-plating” EC directives rather than failing to implement them properly. Also, as noted in the recent post “The ever widening reach of discrimination law” courts and tribunals are prepared in appropriate circumstances to re-write a defective part of an Act of Parliament to bring it into line with EU law
Recently there has been further clarification of the position. On 5 May 2010 the British Court of Appeal handed down its ruling in a case in which a Mr Cooper sued the British government, or more accurately sued the Attorney General representing the British Government. He complained that the British courts had failed to apply EU law correctly and that as a result of that failure the British Government should compensate him for loss he suffered. He has lost.
Dismissing his arguments, the Court of Appeal pointed out that in order to win such a case, the underlying breach of European Community law must be ‘sufficiently serious’. In the case in question the underlying breach of Community law was based on the fact that there had been a procedural defect in the way in which Hammersmith and Fulham Council had come to a town and country planning decision. The important point to note is that in coming to its decision the Court of Appeal suggested that as a general rule a ‘procedural defect’ is unlikely to be ‘sufficiently serious’.
While the case itself did not involve any employment law issue, it does show that it is not easy to succeed in a Francovich type of claim and is thus worth noting in an employment law context.