State Liability in EU Environmental Law: <i>Francovich</i> is Dead, Long Live Compensation?

Abstract In the milestone Francovich case, the European Court of Justice (ECJ) granted individuals, under certain conditions, a right to reparation for Member States’ breaches of EU law. While EU environmental law is rife with well-documented infringements, the Francovich principle, however, has seen little use in practice. This article examines why that is. Through an analysis of the ECJ’s Francovich-related case law, and especially the ECJ’s recent decision in C-61/21 Ministre de la Transition écologique, this study assesses the Court’s interpretation of the Francovich condition that the relevant provision must be ‘intended to confer rights’ on individuals. Against this backdrop, it is shown that the absence of EU environmental law conferring ‘Francovich rights’ is due to the principle’s incompatibility with the collective rights found in EU environmental law. Following from this, this study highlights the incorporation of compensation provisions in three key EU environmental directives as an alternative to Francovich liability and, in so doing, examines the evolving nature of private enforcement of EU environmental law.