European Community Law: New Remedies, New Directions?; Joined Cases C‐6/90 and C‐9/90, Francovich and Bonafaci v Italy1
| Date | 01 September 1992 |
| Author | Erika Szyszczak |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02842.x |
| Published date | 01 September 1992 |
CASES
European Community Law: New Remedies,
New Directions?
Joined Cases C-6/90 and C-9/90,
Francovich and
Bonafaci
v
Italy’
Erika
Szyszczak*
From an early stage in its jurisprudence, the European Court of Justice has
endeavoured to secure the binding nature of Community law in conjunction with
the protection of individual rights. Delving into the Court’s case law, we see a host
of reasons set out for allowing individuals to pursue their rights in the national courts
against both the Member States and private parties: the creation of a new legal order,
the transfer of sovereign rights, appeals to uniformity and efficacy.* Through the
doctrines of direct effect and indirect effect, individual rights in Community law
have evolved to a high degree of protection. But problems arise where Member
States are slow
to
implement Community obligations and where national courts are
unable, or unwilling, to interpret national law
so
as to give effect to the supremacy
of Community law. The EC Commission has repeatedly stressed the need to impress
upon the Member States the importance of implementing Community law promptly
and correctly if the Single Market is to be realised. Recent annual reports on the
monitoring of Community law have shown an increased willingness on the part of
the EC Commission to commence Article
169
EEC and Article
171
EEC actions
against the Member States.’ However, the Interim Report on the implementation
of the Single Market programme reveals that there are still long delays in transposing
some measures into national law.4 The EC Commission has drawn up guidelines
for the monitoring of the implementation of the Single Markets and a variety of
measures have been taken to ensure that the Member States implement Community
law correctly. Such measures include informing interested parties
of
the transposition
of measures via databases accessible to the public, making texts of national trans-
position available for scrutiny
,
encouraging the consolidation of Directives in certain
fields and raising awareness
of
the Member States’ rate of transposition through
periodic reports and Council discussions.
Without the ability of individuals to enforce Community rights in the national
courts, the original enforcement mechanisms contained in Articles
169
and
170
of
the Treaty of Rome
1957
are limited. Individuals have no part to play in the
processb; they cannot compel the EC Commission to commence proceedings by
*Lecturer in Law, London School
of
Economics.
I
[
19921 IRLR 84.
2
3
4
5
COM(91) 473 final.
6
See
also
the greater use
of
the ‘fidelity clause’ contained in Article
5
EEC: Temple-Lang, ‘Community
Constitutional Law: Article
5
EEC’ (1990) 27 CMLR
645.
See
Seventh Annual Report
to
the European Parliament on Commission Monitoring of the Application
of
Community Law
-
1989,
OJ
1990
C232/1; Eighth Annual Report
-
1990,
OJ
1991
C33811.
SEC(91) 2491 final and COM(91) 549 final.
Although individuals do play a major
role
in bringing infringements
of
Community law
to
the notice
of
the EC Commission.
690
The Modern Law Review
55:5 September 1992 0026-7961
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