ABSTRACT
The existence of Member State liability in damages to individuals for failure to implement a directive was an open question prior to the Court’s judgment in Francovich. The application of the condition that the rule of law which has been infringed must have been intended to create rights for individuals, and that the contents of those rights are identifiable from the provisions of the directive, is far from clear. The proper application of the criterion that the breach must be sufficiently serious is still in the process of being worked out by the Court. The Court, however, has indicated its application in a number of different scenarios in relation both to a failure to implement a directive, and a failure to transpose a directive correctly. Advocate General Mischo has suggested that a national authority which merely implements an unlawful Community measure, but was not responsible for its unlawfulness, is liable in damages.
