Francovich and Bonifaci v. Italy: EEC Memeber State Liability for Failure to Implement Community Directives
![handle is hein.journals/frdint15 and id is 1247 raw text is: FRANCOVICH AND BONIFACI v. ITALY: EEC MEMBER
STATE LIABILITY FOR FAILURE TO
IMPLEMENT COMMUNITY
DIRECTIVES
INTRODUCTION
One of the major difficulties facing the European Eco-
nomic Community (the Community or EEC) is the en-
forcement of its directives.' A directive is binding upon each
Member State as to the result to be achieved, but leaves the
form and method of implementation to the discretion of the
national authorities.2 When a Member State fails to implement
a Community directive, the Commission of the European
Communities may bring suit against the Member State before
the Court ofJustice.3 If the Court of Justice determines that a
Member State has failed to fulfill its obligations under the
Treaty Establishing the European Economic Community,4 the
Member State will be required to take measures necessary to
comply with the judgment.5
Proceedings to enforce compliance with EEC obligations
are widely invoked, yet their effects can be minimal because a
deliberately disobedient Member State can refuse to comply
with the judgment.6 Directives may have a dangerously elastic
1. See Deirdre Curtin, Directives: The Effectiveness of Judicial Protection of Individual
Rights, 27 COMMON MKT. L. REV. 709, 711 (1990).
2. Treaty Establishing the European Economic Community, art. 189, Mar. 25,
1957, 1973 Gr. Brit. T.S. No. 1 (Cmd. 5179-I1), 298 U.N.T.S. 3 (1958) [hereinafter
EEC Treaty or Treaty]. Article 189 provides that [a] directive shall be binding, as to
the result to be achieved, upon each Member State to which it is addressed, but shall
leave to the national authorities the choice of form and methods. Id. art. 189. The
Member State must achieve the result sought by the directive within the time period
prescribed by the directive. Ursula Becker v. Finanzamt Miinster-Innenstadt, Case 8/
81, [1982] E.C.R. 53, 70, [1982] 1 C.M.L.R. 499, 512.
3. EEC Treaty, supra note 2, art. 169; see Alan Dashwood and Robin White, En-
forcement Actions under Articles 169 and 170 EEC, 14 EUR. L. REV. 388, 389 (1989) (dis-
cussing Member State's obligations under Article 169, which allows Commission to
institute action against Member State for failing to fulfill its obligations under EEC
Treaty); see also infra part I.C (discussing Article 169 proceedings). Infringement pro-
ceedings have occurred more frequently after 1977 due to the policies of the Com-
mission. Dashwood and White, supra, at 411 n.59. However, a resolution of the
problem through infringement proceedings may take years. Cf id.
4. EEC Treaty, supra note 2.
5. Id. art. 171.
6. Curtin, supra note 1, at 711. In 1990, 334 infringement procedures were
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Francovich and Bonifaci v. Italy: EEC Memeber State Liability for Failure to Implement Community Directives
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