1. Cases C-6 and 9/90, Francovich v. Italy [1991] E.C.R. I-5357Google Scholar, [1993] 2 C.M.L.R. 66.Google Scholar

2. Cases C-46 and 48/93, Brasserie du Pêcheur v. Germany, R. v. Secretary of State for Transport, ex p. Factortame [1996] 1 C.M.L.R. 889Google Scholar; Case C-392/93, R. v. HM Treasury, ex p. British Telecommunications Plc [1996] 2 C.M.L.R. 217Google Scholar; Case C-5/94, R. v. Ministry of Agriculture, Fisheries and Food, ex p. Medley Lomas (Ireland) Ltd [1996] 2 C.M.L.R. 391Google Scholar; Cases C-178, 179, 188 and 190/94, Dillenkofer v. Germany [1996] 3 C.M.L.R. 469. Henceforth, Brasserie (except where one of the cases is being specifically referred to, which should be obvious from the context), British Telecom, Hedley Lomas and Dillenkofer.Google Scholar

3. Hedley Lomas, paras. 132–137; Brasserie, para.65.

4. Case 5/71, Zuckerfabrik Schöppenstedt v. Council [1971] E.C.R. 975.Google Scholar

5. Brasserie, para.65. The A.G. in Brasserie cites Case C152/88, Sofrimport v. Commission [1990] E.C.R. I-2477 as an example. See also Hedley Lomas, para.135 of the opinion.Google Scholar

6. Hedley Lomas, paras.145 and 172; Brasserie, paras.65, 67 and 68.

7. Brasserie, paras.67–69 and 80–81. Cf. paras. 154–169 of A.G. Léger's opinion in Hedley Lomas. He contrasts cases where member States have no discretion (citing non-transposition of a directive) with cases where they enjoy broad discretion. Proof of a grave and manifest breach is stated to be required only for the latter.

8. Brasserie, para.79—see in particular fn.112 there.

9. See idem, para.83.

10. Cf. A.G. Léger's treatment at paras. 160 and 169 in Hedley Lomas.

11. In fact, A.G. Tesauro's reasoning becomes circular and confused because he states that there will have been a serious breach where, inter alia, obligations whose content is clear and precise in every respect have not been complied with (para.84). However, on his reasoning, if the obligation is clear then the serious breach test should not come into play in the first place.

12. Brasserie, para.51.

13. A.G. Léger's opinion in Hedley Lomas has something to recommend it in this respect: all cases which are not cases involving no discretion (cases of no discretion being seemingly limited to non-transposition cases) are by implication cases of broad discretion. The defect in this is that A.G. Leger wishes the serious breach conditions to apply to defective transposition cases. Since he has stated that the serious breach condition cannot apply to cases where the member State enjoys no discretion, this must mean that he regards member States as having a discretion in defective transposition cases. As we shall see, this is wrong.

14. Brasserie, para.48.

15. Idem, para 59.

16. Idem, para.58.

17. But not in relation to the prohibition on the use of additives, since the case law was not yet conclusive on this issue.

18. Brasserie, para.59. In fact, the Court could have analysed the matter in terms of discretion which is also (rather circularly) one of the factors listed to determine whether there has been a serious breach. However, had it concluded that Germany enjoyed no discretion (and therefore that it was in serious breach), its reasoning would have come unstuck because that would suggest that the serious breach test should not have been introduced in the first place. Consciously or otherwise, this may have been why the Court opted for the inexcusable error factor.

19. Detailed discussion of this aspect of the case is contained in Hervey and Rostant, “After Francovich: State Liability and British Employment Law” (1996) 25(4) Industrial LJ.259.Google Scholar

20. Brasserie, para.49.

21. This point on circularity is made by Hervey and Rostant, op. cit supra n.19, at p.269.

22. Brasserie, paras.56 and 57, emphasis added.

23. The Court in Brasserie recognises the fault basis of many of the factors at paras.78 and 79 of the judgment.

24. See idem, para.46 of the judgment.

25. As A.G. Tesauro recognised in his opinion in Brasserie, the same is true in relation to Art.30. It is stretching matters to describe member States as having a discretion in relation to that provision: discretion implies the freedom to choose a certain course of action; it does not seem right to say that a State has discretion until the ECJ rules on the matter. Hence A.G. Tesauro's alternative formulation of discretion or Community obligations which are not clearly and precisely defined. Cf. also paras.33–34 of his opinion in British Telecom.

26. R. v. Secretary of State for the Home Department, ex p. Gallagher [1996] 2 C.M.L.R. 951. Mr Gallagher was seeking damages against the State for breach of Community law in the form of an allegedly incorrect transposition of Art.9(l) of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on the grounds of public policy, public security or public health.

27. Idem, para.15.

28. As indeed counsel for Gallagher had argued—see idem, par a. 14.

29. Hedley Lomas, para.28; Dillenkofer, para.25. Cf. the A.G.'s view in Hedley Lomas that, where the domestic legislature has no discretion, proof of a grave and manifest breach of a superior rule of law cannot be required (para.157—see also para.169).

30. In Ex p. Gallagher, supra n.26, the English Court of Appeal had a chance to consider Hedley Lomas only after argument in the appeal had been concluded. Their conclusion was that “the United Kingdom certainly was called upon to make a legislative choice” (para.29). At the same point in the judgment, they also reaffirmed their earlier conclusion—mistakenly, it is submitted—that the UK did enjoy a measure of discretion.

31. Since Dillenkofer makes it clear that cases of non-transposition will automatically be classed as sufficiently serious breaches without the extra protective hurdle for the member State of the fault factors, it might be claimed that “timeous though totally incorrect implementation” will thereby be encouraged (see e.g. para.38 of A.G. Tesauro's opinion in British Telecom). However, it must be said that, in most member States, implementing directives in national law is not an easy task. Member States will not want to waste time by rushing something through once, hi the firm knowledge that they will only have to correct it again later. Even if they do, that may be no bad thing, since even a faulty, rushed implementation may be better than no implementation at all.