| Abstract [eng] |
The shortcomings of the principles of direct and indirect effects, particularly in the context of enforcement of Directives, as outlined above, led the Court to develope a third and separate principe in Francovich, the principe of State liability. The Court held that where, as here, a State had failed to implement an EC Directive it would be obliged to compensate individuals for damage suffered as a result of its failure to implement the Directive if certain conditions were satisfied. That is, where: • The directive involved rights confered on individuals, • The content of those rights could be identified on the basis of the provisions of the Directive, and • There was a causal link between the State`s failure and the damage suffered by the persons affected. The Court`s reasoning was based on member States obligations to implement Directives under Article 249 (ex 189) and their general obligation under Article 10 (ex 5) of the EC Treaty to „take all appropriate measures... to ensure fulfilment of“ their obligations under Community law. Questions were refered to Court of Justice for interpretation in Braserie/Factortame: a) the principe of State liability should not be confined to failure to implement EC Directives: it should attach to other failures to comply with Community law, including legislatives failures. b) A remedy under Francovich should be available whether or not there were other means by which Community rights might be enforced, that is, on the principles of direct or indirect effects. c) As regards the conditions for liability, apart from the three conditions laid down in Francovich, the principles of State liability should be brought into line with the principles governing the Community`s non-contractual liability under Article 288 (ex 215). A State should only be liable for „manifest and seriuos breaches“ the content of the obligation breached must be clear and precise in every respect, or the NATIONAL authority`s interpretation „manifestly wrong“. If the provision allegedly breached is not in itself clear and precise, the Court`s case law must have provided sufficient clarification as regards its meaning and scope in identical or similar situations. If these conditions are fulfilled there is no need to add a further criterion of fault in the subjective sense, requiring actual knowledge or a deliberate breach of EC law . The obligation to make reparation constitutes a fundamental principe of Community law, which is as fundamental as that of the primacy of Community law or direct effect. Like those two principles, the obligation on the State to make good the loss or damage caused to individuals by breach of Community law helps to ensure the full effectiveness of Community law throught effective judicial protection of the rights which individuals derive from the Community legal order. Indeed, the principe of State liability constitutes the necessary extension of the general principe of effective judicial protection or of the right to challenge a measure before the courts-, whose importance has been regularly underlined by the Court and whose scope has been constantly extended through its case-law. The acknowledgement of State liability seems to be the corollary of the mission – of the utmost importance – conferred on the supreme courts in the direct, immediate and effective protection of the rights which individuals derive from Community law. Usually the European Commision, the Court of Justice distinguish three types of infrigement cases: non communications, non conformity and incorrect application. The predominant political context of the implementation has changed to exclusively legal context after the accesion of Lithuania to the European Union. Since that time the European Commission has started supervision of the proper implementation and application of EU law in Lithuania with full effect of its powers provided in Articles 226 and 228 of the EC Treaty. |
