Compared with those foreseeable in connection with Italian law, the consequences of the Francovich decision upon English law seem to be less devastating, but still serious.
Less devastating because tort liability rules are not formulated using broad principles; English lawyers prefer adding a new limited tort category to generalising an old one; in this way they avoid the risk of enlarging a head of liability more than is necessary in order to conform the law to new claims for damages. Serious anyway because, even if not technically, the Court of Justice has in practice overruled the Court of Appeal's decision in Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food.
In Bourgoin the plaintiffs produced frozen turkeys in France which were then imported into the United Kingdom under a general licence granted by the Ministry of Agriculture, Fisheries and Food; the Ministry revoked the licence and thereby prohibited importation alleging the need to prevent the spreading of an animal disease; after the Court of Justice had held the Minister's action to be in conflict with article 30 of the EEC Treaty, the French producers sued the Ministry for compensation for the damage suffered when the ban on imports was in force.
Given the structure of the English law of torts, the plaintiffs could not just ask for damages, they had to plead some specific tort; they chose three, namely breach of statutory duty, an "innominate tort" such as the one to which Lord Denning made reference in Application de Gaz S.A. v. Falks Veritas Ltd., and misfeasance in public office.
In the Court of Appeal misfeasance in public office was thought to be applicable if it could be established at the trial that the Minister had acted in deference to pressure exerted by home poultry farmers, but this conclusion was reached only after the Court had held that the facts as pleaded by the plaintiffs disclosed no cause of action against the defendant under the first two headings.
The Court of Appeal was unanimous in excluding the existence of an "innominate tort" characterised by the infringement of Community law quite independent of the familiar figure of breach of statutory duty. Prior to the decision in Bourgoin, the House of Lords decision in Garden Cottage Foods Ltd. v. Milk Marketing Board had already made clear that there was no such a tort and that Lord Denning's dictum in Application de Gaz was plainly obiter.
Breach of statutory duty was excluded by Parker L.J., with whose opinion Nourse L.J. concurred; according to the judgment of Parker L.J., the position of the importers was
"closely akin to the right of an individual in English domestic law not to be subjected to an ultra vires measure. If he is he can ask the courts to declare the measure invalid and having done so he can safely ignore it. If, but only if, he alleges and establishes that the imposition of the measure constituted misfeasance, has he an ordinary civil action in damages for misfeasance".
On the one hand, the majority view, vigorously contested by Oliver L.J., applied in the Bourgoin case the distinction between private rights and public rights. In recent years, following the emergence of a more coherent body of administrative law , and, more particularly, the reform of judicial review of administrative action, English courts have begun to classify rights in different categories. Only public law remedies are to be attached to public rights, in order to avoid the possibility that a party might, by invoking a private law remedy, outflank the strict time limits which applied in remedies in public law. This was the rationale of two important House of Lords' decisions; the first, O'Reilly v. Mackman, denied a prisoner the right to ask a declaration of the Court without following the procedure of application for judicial review; the second, Cocks v. Thanet District Council, which was decided on the same day as O'Reilly, denied a homeless person the right to ask the Court for a declaration that a local authority had unlawfully refused him homelessness benefits.
This English distinction in the field of citizen's rights bears a striking similarity to the Italian distinction, described above, between subjective rights and legitimate interests is striking. As Lonrho v. Tebbit shows, that distinction has introduced some uncertainty into the law of torts.
On the other hand, ignoring the close connection between the two aspects, the Bourgoin decision could have been seen solely as an application of the classical rules laid down by the common law to sort out those duties whose breach sounds in damages.
In Cutler v. Wandsworth Stadium Ltd., the House of Lords pointed out that:
"if a statutory duty is prescribed but no remedy by way of penality or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach".
In relation to breach of public law duties it could be said that against public bodies an "otherwise" remedy is always to be found in application for judicial review.
Another aspect of Cutler may be relevant. The House of Lords held that only those for whose protection the duty was established could claim compensation. But it is very easy to go a step further, as the bank cases referred to above show, and hold that public duties are imposed for the protection of the public at large, not of any particular individual.
At common law liability is even more limited - not to say that it does not exist - when one moves from the field of public duties to the field of powers. In Geddis v. Proprietors of Bann Reservoir, liability for failing to remedy the consequences of a flood in reasonable time was excluded even if negligence was established; the House of Lords held that because the competent authority had the power but was under no duty to intervene, it could be liable only if it caused fresh additional damage.
The Court of Justice decision in Francovich is believed to change this situation, at least in so as far Community law is concerned. In a recent decision, Kirklees Metropolitan Borough Council v. Wickes Building Supplies Ltd., Goff L.J. observed that:
"since the decision of the European Court of Justice in Francovich v. Republic of Italy [...], there must now be doubt whether the the Bourgoin case was correctly decided".
Even if in Kirklees it was not necessary for the House of Lords to decide the point, it is suggested that the tort of breach of statutory duty will have to accommodate itself to make room for a doctrine which is far more liberal than English law in at least two respects; first in allowing remedies that are different in nature to concur in the same factual situation ; and second in recognising citizens' rights whose infringement entitles them to compensation; that is what in English domestic law are called private rights.
Francovich has introduced a new duty into English law; a duty whose infringement gives rise to strict liability. The situation is roughly comparable in Germany, for scholars there believe that the ruling by the Court of Justice has a created a new Amtspflicht (official duty) under § 839 BGB.
To find out when the violation of a Community law provision will give rise to liability, it is no longer useful to look back to Cutler, or to Geddis; or to the more recent decisions from O'Reilly and Cocks onwards.
Like the Italian judge, the English judge will have to look to the case law of the Court of Justice, and have recourse to the procedure for preliminary ruling. As has already been suggested, the nature - formal, procedural or otherwise - of the provision infringed will be decisive. The fact that the provisions infringed were enacted in the general interest will be irrelevant, because under Community law - as Hartley pointed out - this "does not mean that it cannot also have been intended to protect the interests of particular individuals".
New tort actions are the foreseeable outcome of the Francovich decision. It has been pointed out that the ruling by the Court of Justice could be relevant with reference to flawed implementation by the British Goverment of Council Directive 76/207 on the equal treatment of men and women workers.
Concluding remarks: the birth of a "jus commune" in the field of judicial protection of individuals against public powers.
The Francovich decision has a relevance which goes beyond the field of governmental liability. It marks the birth of a "jus commune", of a law common to all the Member States and to the Community itself, in the field of the judicial protection of individuals against public powers.
In Factortame and to a larger degree in Zuckerfabrik Süderdithmarschen the Court of Justice laid down the rules to be applied by domestic courts when granting interim relief in Community law cases. The rules were the same as those applied by the European Court itself in proceedings under articles 185 and 186 of the EEC Treaty, the first of which was explicitly referred to by the Court.
In Francovich the Court of Justice applied to actions of the Member States inconsistent with Community law the same rules which has been elaborated by the Court itself in relation to non-contractual liability for invalid acts of Community organs - but with a qualification; it forgot that in Community law the breach has to be "sufficiently serious". But qualifications are inconsistent with a "jus commune"; they destroy its inherent condition, namely, to be common.
cc Having begun with Bourgoin, it is with Bourgoin that we shall end :
"If the position is that the Council is not liable in damages for a mere breach of an article conferring individual rights, where that breach consists in legislative act, but that the United Kingdom Government is so liable, a strange situation might arise. If that government, acting in pursuance of an invalid Council regulation, sought by legislative action to implement it, it would be liable in damages whilst the Council, despite the express provisions of article 215 and the fact that the United Kingdom Government is obliged to implement regulations, would not. This would be the stranger in that the non-liability of the Council has been arrived at having regard to the principles in the legal systems of member states governing the liability of public authorities for damage caused to individuals by legislative measures".