Francovich and the Problem of the Disobedient State

• Published date: 01 November 1996
• DOI: http://doi.org/10.1111/j.1468-0386.1996.tb00026.x
• Author: Carol Harlow
• Date: 01 November 1996

Europeun

Lun

Joumul,

Vo/.

2.

No.

3,

November

1996,

pp.

199-225

0

Blackwell

Publishers Ltd.

1996,

108

Cowiey

Road,

Oxford

OX4

IJF.

UK

and

238

Main

Street,

Cambridge, MA

02142,

USA

Francovich and the Problem

of

the

Disobedient State

Carol

Harlow*

Abstract:

This paper is an attempt to evaluate the rapidly expanding line

of

jurisprudence which derives from Francovich and Bon faci

v

Italian Republic (Cases

6,

9/90).

The paper argues that there is a serious mismatch between the priorities

of

the

EC

and national legal orders and that the impact

of

the superior order on national

legal systems may be both unexpected and detrimental. Seetion

I

argues: that the

theoretical underpinnings for state liability in

EC

law are in fact weak and raise

objections

of

principle; that ‘infection’

of

national liability systems by the new

principle is both inevitable andproblematic; and that damage may be caused to the

EC

liability system through ‘cross-infection’. Section

II

argues that in the modern state,

balance between the Rule

of

Law doctrine and principles

of

political and democratic

supremacy are both hard to attain and inevitably the subject

of

controversy. This

problem is heightened within the Community by the existence

of

competing legislative

systems, lack

of

clarity over sovereignty and worries over democratic deficit. The

contribution

of

Francovich to the resolution

of

these problems is largely negative.

I

Introduction

This paper is an attempt to evaluate the rapidly expanding line of jurisprudence

deriving from

Francovich and Bonifaci

v

Italian Republic’,

a case which has been the

subject

of

so

much comment as to require apology for any more2. Its starting-point is

an observation by Dehousse’ concerning the interlock between the national and

EC

legal orders. Dehousse contends that the two systems not only confront problems from

a different angle but that their ultimate objectives also differ. In these circumstances

the impact of the superior legal order on‘national legal systems may be both

*

Professor of Public Law at the London School of Economics. This article was made possible through the

support of Professor Yves Meny and the Robert Schuman Centre of the European University Institute.

The author also wishes to thank Professor Sabino Cassese and Dr. della Cananea for arranging a seminar

in Rome where the ideas could be discussed, as well as Armin von Bogdandy, Peter Cane, Luis Diez

Picazo. Trevor Hartley and Richard Rawlings for correcting errors and stimulating rethinking on many

points.

Joined Cases

6,

9/90

Francovich and

Bonufuci

v

Italy

[I9911 ECR 1-5357.

Caranta, ‘Judicial Protection against Member States: A New

Jus

Commune Takes Shape’, (1995)

32

CML

Rev.

703 provides a short bibliography at note 24.

Dehousse, ‘Comparing National and EC Law: The Problem of the Level

of

Analysis’, (1994) 42

Am.

J.

oJ

Comp

Law

161,765-7.

European Law Journal

Volume

2

unexpected and detrimental; in short, a mismatch results. Dehousse is studiously

neutral as to

quality;

he does not suggest at any point that the rules or objectives of

one system are ‘wrong’ and of the other ‘right’. Clearly, however, if this were to be the

case, any mismatch would be more damaging.

This paper also considers a second discordance, familiar this time within national

constitutions. In the modern state, the balance between the Rule of Law doctrine and

principles of political and democratic supremacy may be hard to attain and

is

a

subject of controversy. This problem is heightened within the Community by the

existence of competing legislative systems, lack of clarity over sovereignty and

concerns over democratic deficit4. All these frictions, I shall argue, are likely to be

intensified by the introduction into disputes of the threat of legal liability

of

component units.

The ECJ operates within a distinctive ideology

-

using this term strictly in its

technical and value-free sense to convey a set of ‘taken-for-granted, largely

unexamined, common sense, and highly generalized assumptions about the nature

of

law which inform attitudes to law’5. The Community is a liberal economic polity and

the EC legal order is necessarily based on a liberal economic philosophy. It reflects the

ideologies

of

property, liberty and the Rule of Law. Less predictably, it is also emerging

as a legal order rooted in legal positivism and in a nineteenth-century ‘command’

model of law6. These tendencies have fostered a belief that it is both proper

to

use EC

law to promote and entrench a climate of free enterprise and improper to challenge

these supposedly ideologically neutral objectives7. The dominant ideology is also self-

avowedly integrationist; Judge Mancini has famously talked of integrationism as a

‘genetic code transmitted to the court by the founding fathers’*. My paper argues that

this particular vision of law and of law’s purposes not only threatens the EC legal

order but can weaken its constitution and political institutions. To express this in

rational choice terminology,

I

shall describe the ECJ as ‘selfish’ in imposing its

doctrine of supranational liability on national systems. Just as national courts are

under the Article

5

EC obligation of solidarity to develop the law in such a way as to

‘facilitate the achievement of the Community’s tasks’,

so

too the ECJ owes a

corresponding obligation in respect of the national legal systems which act as its

pillars. May puts this more strongly: as guardian of the EC legal order, it is the ECJ’s

function to act as ‘conscious initiator of discussion with national courts, the Member

State governments and jurists in general in the search for authority in the law’9. In

short, a constructive relationship between the Community organs demands dialogue

rather than command and understanding rather than sanction.

See Weiler, ‘The Community System: The Dual Character

of

Supranationalism’, (1981)

1

YEL

267 and

Idem,

‘The Transformation

of

Europe’, (1991)

100

Yale

LJ

2403; Weiler, Haltern, Mayer, ‘European

Democracy and its Critique’, (1995)

18

W

Eur Pol.

I;

Curtin, ‘The Constitutional Structure

of

the Union:

A Europe of Bits and Pieces’, (1993) 30

CML Rev.

17.

R. Cotterell,

Law’s Community. Legal Theory in Sociological Perspective

(Clarendon, 1995) p 253.

Shapiro, ‘Comparative Law and Comparative Politics’, (1980) 53

S.

Calif: Law Rev.

461.

See von Mestmacker, ‘On the Legitimacy

of

European Law’, (1994)

58

RabelsZ

617;

I.

Ward, ‘(Pre)

conceptions in European Law’, (1996) 23

1

ofLaw and

Soc.

198.

*

Mancini and Keeling, ‘Democracy and the European Court

of

Justice’, (1994) 57

MLR

175, 186. See also

Wincott, ‘The Role of Law

or

the Rule of the Court

of

Justice? An Institutional Account

of

Judicial

Politics in the EC’, (1995) 2

J

of

Eur

Pub.

Policy

583, 584.

C. May,

The Function

of

Judicial Decision in European Economic Integration

(Martinus Nijhoff, 1972) p

417. See also Maher, ‘National Courts as European Community Courts’, (1994) 14

Legal Studies

226.

200

0

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Publishers

Ltd.

1996