This paper article 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 Francovich, is not a suitable and reliable mechanism to compensate for the weaknesses of public enforcement. The article presents statistical findings regarding the case law on Member State liability in two key Member State jurisdictions, England and Germany. These reveal that surprisingly little litigation has taken place 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 an enforcement mechanism. The article then goes on to analyze why it is that most of the proceedings initiated are unsuccessful. The author establishes that there the criteria for the remedy are very difficult to satisfy and that there is a 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 viewed as a means of individual compensation and that it does not contribute to overall compliance of Member States with EU law.
Lock, Tobias, Is Private Enforcement of EU Law Through State Liability a Myth? – An Assessment 20 Years after Francovich (May 4, 2012). Common Market Law Review, Forthcoming.