Is Private Enforcement of EU Law through State Liability a Myth?:An Assessment 20 Years after <em>Francovich</em>

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