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Law is useless without enforcement. The process of making national law equally enforceable not just against individuals or friends of the mighty but also against the mighty themselves, has been a long lasting journey. Nowadays, this is a corner stone of the constitutional democratic state. Making supranational or even international law enforceable against States is a story still unfolding. The latter can be observed daily in the context of the United Nations work. Successes with for example the International Criminal Tribunal for the former Yugoslavia are followed by less successful initiatives like the International Criminal Court. The former, being supranational law - and more specific is the subject of this dissertation.

The law of the European Community, or the , consists of three types of legislation. Firstly, there is , written down in . (Treaty of Rome (1957) amended by the Single European Act (1987), the Treaty on European Union - ‘Maastricht Treaty’ (1992), the Treaty of Amsterdam (1997) and the Treaty of Nice (2002). These are to be ratified by the Member States’ national parliaments. They have direct effect, meaning that this supra-national law becomes legislation that is to be applied before national courts by national judges.

Under the current regime of European legislation and its interpretation, Member State liability for breaches of EC-legislation can occur in different cases, depending on the type of legislation breached. European form a distinct group of legislation breached, compared to a second group containing European and A third group are judgements by the European Court of Justice. This chapter offers an of European law qualified as “breach” as well as a . The chapter will finish with a theoretical discussion and empirical analysis of the of breaches of European legislation and possible for those breaches.

European legal scholarship has written extensively on the doctrine of state liability for breaches of European law. Especially after the European Court of Justice’s Francovich decision in 1991, scholarly interest in the field of state liability exploded, making authors start articles “requiring apology for any more” or title them “Once more unto the Breach”. This chapter aims at providing an in-depth analysis of the primary legislation as well as of the European Court of Justice’s jurisprudence on the matter of non-contractual liability of Member States.

In the preceding parts, it was explained why, if at all, Member States might breach European legislation they voluntarily approved of. Also, existing legal remedies on both the private and the public level coping with this breaching were discussed.

So far, we discussed why Member States might breach agreements they entered into and a performed a first simple analysis of state liability law in the framework of the classical law and economics literature. However, we remain with the question whether there now is a need for action upon such breaches. In other words: once an agreement (in this case, the agreement is a legal provision) exist, the elementary question will arise what one should do in case of a conflict. Should one stubbornly stick to the agreement or should one allow for breaches? This short chapter is a brief economic analysis of the preferability of breaches of European law. Due to the special nature of the agreement, we thus discuss a situation with characteristics of both contract law and law enforcement.

After having set out the function of state liability as an enforcement instrument with the use of normative analysis, the next question to be answered is how exactly this aim can be reached successfully in practice. This chapter will distinguish between two enforcement mechanisms: a and one. After this initial distinction we will then go on comparing both.

It is clear from the preceding chapters that two distinct mechanisms exist who play a role in the enforcement of European law. The article 228 procedure under primary legislation is a public enforcement procedure, with the European Commission acting as some kind of and the European Court of Justice as judge. The Francovich procedure functions similar to a privately initiated enforcement procedure before national judges.

Advocate-General Geelhoed as well as Advocate-General Damaso Ruiz-Jarabo Colomer recall that the fine foreseen for in article 228 is not designed to act as a penalty but to encourage the defaulting Member State to step back into line. The amount should be in proportion to the scale of the offence and enough to act as a .

In part III, we analysed the real aim of the European Court of Justice’s doctrine of allowing for private tort claims against member states for breaching European law. Part IV discussed the usefulness of this approach vis-à-vis a more public approach and some practical, procedural problems that do arise with it. This chapter moves one step further in examining exactly how deterrence with monetary means could (not) function against democratic states.