Holes in the safety net? State liability and the need for private law enforcement

MARSON, James (2004). Holes in the safety net? State liability and the need for private law enforcement. Liverpool Law Review, 25 (2), 113-134.

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Official URL: http://dx.doi.org/10.1023/B:LLLL.0000040550.37704....
Link to published version:: https://doi.org/10.1023/B:LLLL.0000040550.37704.81


Following Francovich and Bonifaci v Italy[1991] it was widely considered that State Liability would be an enforcement mechanism that would end the problems the European Court of Justice (ECJ) had contended with through its battle over the adoption or denial of Horizontal Direct Effect of Directives (HDE). In the subsequent years it has been demonstrated that the debate for and against HDE's adoption has continued. This has been due in part to the limitations of State Liability as an effective enforcement mechanism which provides individuals not with their rights, but rather a damages action against the State. This article critiques State Liability and demonstrates the severe limitations which this enforcement mechanism has for those who wish to avail themselves of EC rights denied to them. Such limitations include the piecemeal nature of this method of enforcement; whether cases, particularly from employment law issues, should be heard against the State or the employer causing the problem complained of; and the nature of an enforcement mechanism based on the award of damages. It concludes by analysing this evidence as to whether State Liability is an adequate alternative to HDE, and hence should the enforcement of EC law be brought back from a public law action to the private sphere.

Item Type: Article
Research Institute, Centre or Group - Does NOT include content added after October 2018: Law Research Group
Identification Number: https://doi.org/10.1023/B:LLLL.0000040550.37704.81
Page Range: 113-134
Depositing User: James Marson
Date Deposited: 11 Dec 2014 14:57
Last Modified: 18 Mar 2021 04:23
URI: https://shura.shu.ac.uk/id/eprint/8869

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