Chapter 6 Practice essay question

Chapter 6 Question

The ruling in Cases C-6 and 9/90 Francovich has been described by Bebr as the ‘ultimate consequence’ of Case 26/62 Van Gend en Loos.

Please clarify this statement and explain how you consider he reached that conclusion in the light of the series of developments connecting those two cases.

Attempt this question before reading the answer guidance below.



Answer guide

This is a classic question and indeed formulation, and is an invitation to provide a lineal outline of the origin and development of direct effects. It thus requires not just the discussion of the beginnings of this evolution through different EU legal forms, but also a consideration of the consequences of a particular CJEU judgment in the Marshall case. This was not allowing horizontal direct effects of directives. You need then to discuss the various further developments by the Court of Justice to overcome the unfortunate aspects of that case including an expanding definition of the state (Foster v British Gas), indirect effects (Von Colson & Harz cases) and culminating with Francovich and the introduction into the EU legal order of the principle of state liability. You should finish by explaining what Bebr meant – essentially that Francovich squared the circle, so to speak, by plugging the gap left as a result of the Marshall decision.

Alternatively you could start by taking a long look at Francovich – what it did and why – and then fit that into the previous developments. See for help Foster on EU law, Chapter 6, Section 6.4.