ECJ may crack down on directive dodging

THE EUROPEAN Court of Justice could extend its doctrine on the failure to implement EU directives to include a provision for action against member states which only partially meet their obligations, says Lord Clinton-Davis.

Speaking at a recent Solicitors European Group (SEG) dinner, he said there appeared to be a “real possibility” in cases now before the court that the doctrine would be extended beyond the “Francovich” boundaries.

Clinton-Davis is a former member of the Commission of the European Communities and a consultant with SJ Berwin & Co.

The courts can only hear cases if an EU member has either failed or refused to implement an EC directive.

But Barnett Alexander Chart solicitor Ruth Harvey says it appears clear from the Factortame (No 3) case, heard by the ECJ last month, that “some form of liability for the wrongful implementation of European Community obligations is likely”.

She continues: “However, issues such as the degree of culpability required and the substantive and temporal scope of the doctrine need to be addressed.”

SEG vice chair, Philip Wareham, head of the European department at Holman, Fenwick & Willan, says that there are a number of issues which require clarification by the court.

“One of those areas is the issue of whether you can claim damages against a member state where it is not a breach of the directive but a breach of the primary treaty obligations,” comments Wareham.

“The other issue is this one of partial or faulty implementation. There are lots of loose ends that the court is going to be called on to tidy up in the next few years.”