Francovich

How the Irish State may be ultimately responsible for wind turbine noise
damages - Francovich liability of the Member State under EU
This is a real live issue, with extensive case law already, plus it is inevitable that it
will be used, as the Court cases develop and mount up. The families in Cork with
their recent win might be the first to date, but they won't be the last and the real
'target' is the Irish State and other Member States.
It all started with Senior Francovich in Italy, who, when his employer went bust, in a
neat move, got the financial compensation due to him and his mates, as Italy had not
transposed the necessary EU legislation in this field. Yes the Italian government had
to fork out, as the company going bust had left nothing in the kitty:
• https://en.wikipedia.org/wiki/Francovich_v_Italy
Believe it or not, the EU Commission thought this was a wonderful idea, as instead of
them having to go after Member States to comply, the citizen would be empowered to
do so. They even wrote a guide on it:
• http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:l14553
...and it then got put into the legally binding Charter of Fundamental Rights in the
Lisbon Treaty:
• http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT
For example: Article 41
Right to good administration
• 3. Every person has the right to have the Union make good any damage
caused by its institutions or by its servants in the performance of their
duties, in accordance with the general principles common to the laws of the
Member States.
In 2015 a Nigerian national hit the Irish State for €127,905:
• http://emn.ie/cat_search_detail.jsp?clog=6&itemID=2862
Bottom line, the next time the State wants to kick out Nigerians they consider as
dodgy, they would need to ensure first that their own laws aren't dodgy for not
complying with the necessary EU legislation in this area. Remember the man in
question is not even an EU citizen!
• Losses suffered as a result of his dismissal from employment - duty to mitigate
- measured Francovich damages for breach of European law at €107,905
Plus he got €20,000 for loss of good name!!

It's not that this hasn't happen before elsewhere, it has on several occasions, the UK
drug dealer cashing in being one, which naturally created a bit of a stir:
• http://ukhumanrightsblog.com/2014/06/07/drug-dealer-passenger-gets-eurodamages-for-car-crash/
So anyhow, what's that got to do with wind? Well if there is a breach of rights,
resultant damage and a causal link between the two, then you can 'spin the wheel'.
Lots of breaches of rights, after all the Profs in Trinity have even written on the topic:
• http://www.tandfonline.com/doi/abs/10.1080/02646811.2015.1008847
In addition, the SEA Directive also defines a legal obligation to monitor for
unforeseen adverse environmental impacts:
• http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32001L0042
Article 10
Monitoring
1. Member States shall monitor the significant environmental effects of
the implementation of plans and programmes in order, inter alia, to
identify at an early stage unforeseen adverse effects, and to be able to
undertake appropriate remedial action.
If the law had been complied with, this mess wouldn't have happened and people
would not be abandoning their homes.
Take the famous wind energy guidelines for instance and the pathetic situation we are
in. In summary, if they put in proper controls on planning and noise, they won't be
able to build out all of this wind programme. So it's simple, they either damage even
more people in rural Ireland or damage this silly industry sector they are obsessed
with and they can't come to a conclusion, as to which they are going to choose; they
want to both have their cake and eat it. However, all of this should have been sorted
out before adoption of the programme by proper adherence to the Aarhus Convention
and the Directive on Strategic Environmental Assessment, so there is big liability
there. Liability which is not time limited (expired), as the Irish State insists that the
NREAP is a general statement of policy, so in official legal terms there is no
renewable plan or programme in Ireland, it just 'happens' to be built all around
Ireland, i.e. there is no actual legal decision which engages a time limit on the liability
claims.
This is not going to go away. When people have to leave their homes due to a
regulatory system which has completed failed to adhere to its own legal
standards........
Check out the Public Interest Law Alliance (PILA) section who aim to get the law
working for those most in need and see the law as an agent of positive social change.
• https://www.pila.ie/who/