Francovich Case

FRANCOVICH

Joined Cases C-6/90 and C-9/90

EUROPEAN UNION LAW

The Francovich Case, also known as Joined Cases C-6/90 and C-9/90, is raised by Andrea Francovich and Danila Bonifaci and Others (“the plaintiffs”) against the Italian Republic. It concerns the failure to implement a directive by a liable Member State. The Court of Justice decided this judgement on 19 November 1991.

This judgement appears as the main precedent of the infringement proceeding of the European Union Law (hereafter, EU Law) in case of breach by a Member State of the obligation to implement a directive. It has become an essential reference in case of infringement caused by the non-transposition of the Directive 80/987 (hereafter, the Directive) relating to the protection of employees in the event of the insolvency of the employer.

The Directive relating to the protection of employees in the event of the insolvency of the employer, grants employees a minimum European protection in these cases, no matter those favourable provisions the Member State could already grant. The Directive provides specific provisions, which guarantee the payment of the outstanding pay claims of the employees. Article 11 of the mentioned Directive recognizes the right of the employee, but says nothing about the financing of the guarantee institution. This article states that the Member States where the ones responsible to establish the laws, regulations and administrative provisions necessary to comply with the Directive which expired the 23rd October 1983 (36 months of its notification). The Italian Republic did not comply with his duty of transposing this Directive; therefore, the Court of Justice declared its infringement through judgement on 2 February 1989.

In Joined Cases C-6/90 and C-9/90, formed by Mr. Francovich and Ms. Bonifaci and other thirty three workers respectively, issues concerning the Directive where arose. The concerning issue appeared when the workplace of both Mr. Francovich and Ms. Bonifaci became insolvent, deciding these employees to claim the guarantees that legitimately pertain to them under the Directive, and alternatively, compensation or credits who correspond to Ms. Bonifaci for the salary arrears. In this context, once both plaintiffs went to court, this institution raised a preliminary ruling before the Court of Justice, where an identical issue was brought to matter.

Under the current EU Law, the subject matter was if individuals who had been harmed by a breach of a Member State on its obligation to implement a Directive (breach already declared by the judgement of the Court of Justice in 1989), were legitimize to demand the Member State to comply with the precise and unconditional provisions of the Directive, as well as compensating every possible damage suffered by the parties.

On this basis, the judgement assesses two problems separately. On one hand, it values the direct effect of the provisions granted in the Directive that determine the rights of employees. On the other hand, it determines the existence and the scope of the responsibility of the Member State for any possible damage resulting from the breach of its obligations under EU Law.

Regarding the mentioned issues, the Court of Justice reached the following three conclusions.

First, due to the direct effect of the dispositions of the Directive that define the rights of workers, the Court concludes that even when the dispositions in the Directive are precise and unconditional enough in what attains to the specification of the beneficiaries of the guarantee (and the content of the same), such elements are not enough for individuals to appeal these dispositions before national courts. In fact, the mentioned dispositions do not specify who is obliged to give the guarantee. On the other hand, the Member State may not be considered forced to apply the dispositions only because they have not adopted their national law to the Directive in time. To sum up, workers may not use those rights against the Member State just because the Directive has not been transposed in the established period.