At the beginning of this paper, I highlighted the importance of
identifying a theoretical framework to provide normative guidance for the
doctrinal development of the law of the European Union on Member State
liability. To this end, we looked in Parts I and II at the essential features
of the system of State liability introduced by the European Court of Justice in
Francovich, and concluded that it presented the formal characteristics
of constitutional tort liability. However, our examination in Part III of the
theories of justice which may be used to support constitutional tort liability
revealed that these theories are incapable of explaining the phenomenon of
Member State liability in the European Union, essentially because of the nature
of the rights with which the EU is concerned. These rights, as we saw in Part
IV, are instrumental in two senses: their content is justified by reference to
the broader goals of the Treaties, and even the invocation of the notion of
rights seems to serve an ulterior purpose.
The discovery that despite the formal resemblance between EU Member State liability and constitutional tort liability, theories of justice traditionally applied to illuminate the liability of governments for constitutional violations do not explain the liability regime in the EU, does not dispense with the need for a theoretical framework in which to situate the latter phenomenon. And so, given the limitations of the prevailing theoretical models, the conclusion I have reached is less an ending than an opening to further inquiry and reflection in the ongoing search for a theory of State liability in the European Union.
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