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Is private enforcement of EU law through state liability a myth? – An assessment 20 years after Francovich

Lock, TS (2012) Is private enforcement of EU law through state liability a myth? – An assessment 20 years after Francovich Common Market Law Review, 49 (5). pp. 1675-1702.

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Abstract

This paper assesses the success of Member State liability as a tool for the private enforcement of European Union law. The argument made is that Member State liability, first established 20 years ago in the Francovich case, is not a suitable and reliable mechanism to compensate for the weaknesses of public enforcement. The argument is based on statistical findings concerning the case law on Member State liability in two key Member State jurisdictions, England and Germany. The findings reveal that surprisingly little litigation has taken place so far and that only a handful of cases were litigated successfully. This leads the author to conclude that Member State liability has not been successful as a mechanism for the enforcement of EU law. The article continues by analyzing why most of the proceedings initiated remain unsuccessful. It is shown that the criteria for the remedy are very difficult to satisfy and that there is reluctance on the part of national courts to award damages for the failure of Member States to comply with EU law. Before this background it is suggested that state liability under EU law should be chiefly regarded as a means of individual compensation rather than a tool for the private enforcement of EU law.

Item Type: Article
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
AuthorsEmailORCID
Lock, TSUNSPECIFIEDUNSPECIFIED
Date : 15 October 2012
Additional Information : This is a pre-edited work and has been accepted for publisher in Common Market Law Review
Depositing User : Symplectic Elements
Date Deposited : 25 Aug 2015 16:21
Last Modified : 25 Aug 2015 16:21
URI: http://epubs.surrey.ac.uk/id/eprint/733171

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