Breach by a Member State of the obligation to transpose a Directive and the obligation to make good the damage caused to individuals

A Directive, unlike a Regulation, which is applicable in EU countries’ internal law immediately after it enters into force, is not directly appropriate in the Member States. It must first be transposed into national law, and it only takes effect once transposed.


Article 288 of the TFEU (ex Article 189 EEC Treaty) provide that “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”.


In this historical case law, the European Court of Justice clarified that a directive not been put into effect in national law was not directly enforceable between individuals in that Member State. Consequently, this judgment explained that a person could not rely on filing a claim against another person regarding the direct effect if it has not been transposed.

Case Summary

The Giudice Conciliatore di Firenze (Judge-Conciliator, Florence), Italy, asked the European Court of Justice (ECJ) in a preliminary ruling on the interpretation of Council Directive 85/577/EEC, concerning the protection of the consumer in respect of contracts negotiated away from business premises, and on the possibility of relying on that Directive in proceedings between a trader and a consumer, to judge in a proceeding pending between Paola Faccini Dori, of Monza, Italy, and Recreb Srl, where Paola signed a contract with Recreb for an English course but cancelled her subscription, based on the cancellation right granted by this Directive. However, the national court ordered her to pay  the agreed amount with interest and costs.

She objected to that order by stating that she had withdrawn from the contract under the conditions laid down by the Directive.

It was confirmed at that time that Italy had not taken any steps to transpose the Directive into national law, although the period set for transposition had expired.

The national court was uncertain whether it could nevertheless apply its provisions even though the Directive had not been transposed at the material time.

In response, the ECJ held that where damage has been suffered. That damage is due to a breach by the State of its obligation, it is for the national court to uphold the right of aggrieved consumers to obtain reparation following federal law on liability and that in the absence of measures transposing the Directive within the prescribed time-limit consumers cannot derive from the Directive itself a right of cancellation as against traders with whom they have concluded a contract or enforce such a right in a national court. However, when applying provisions of national law, whether adopted before or after the Directive, the federal court must interpret them as far as possible in light of the wording and purpose of the Directive.

So, it ruled that even if Paola had the right to rely on the Directive in action against Recreb because the Directive´s provisions were unconditional and sufficiently precise, this right was not recognised since Italy did not transpose this Directive.

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