Francovich claims are a mechanism in EU law established by the Court of Justice of the European Union (CJEU), in order to secure the primacy of Union law. These claims are justified as “inherent in the system of the Treaty“, more specifically in the direct effect of EU law, the principle of efficiency (effet utile), and the principle of loyal cooperation.
Francovich claims deal with the liability of EU member states towards individuals, for breaches of EU law. They have to be distinguished from the liability of the EU itself, from actions by the EU against member states, and from actions between member states before the CJEU.
A Francovich claim, first and foremost, necessitates a rule intended to confer an individual right. Such a rule is one where, in establishing it, the EU has recognised any individual interests related to it. In addition, the rule must be sufficiently specific. It is uninjurious to the claim whether the member states have been left any discretion.
Secondly, the aforementioned rule must have been breached in a sufficiently serious manner. There must have been a grave and obvious violation on the part of any state power, be it legislative, executive or judicial. Culpability is not required. State action in contravention of established case law is always deemed sufficient.
Finally, there must be a direct causal link between the sufficiently serious breach and the damage suffered by the claimant. Most importantly, the directness of the causal link depends on whether the damage falls within the scope of protection of the rule in question, which is ultimately a question of policy.
The consequence is then a claim under the domestic law of the member state concerned. However, the claim must be granted with the due efficiency and equivalence with Union law. Liability must be as or less strict than liability for breaches of national law. Most legal defences to state liability are rendered inapplicable, save for contributory fault or the statue of limitations.
