As the Treaty does not contain any rules on State liability, its development in the foreseeable future remains a matter for the courts. To date, there is still no written law, i.e. no codification of the Francovich principles, in any of the Treaties. There is, however, a constitutional dimension to the liability of public authorities for damage resulting from a breach of Community law in the form of fundamental rights guarantees. The Charter refers to liability of the Community as part of Chapter 5 Citizens' Rights. In substance, this provision copies the current liability provision in the EC Treaty, Article 288, which also proclaims in broad terms a right to compensation based on the general principles common to Member States.
Nothing is added in terms of a specification of liability requirements.
More particularly and already relevant under current law, they have to remain within the boundaries set by Articles 6 and 13 of the European Convention of Human rights. 46 TEU declares applicable to the TEU the provisions on the powers of the ECJ under the EC, ECSC and the EAEC Treaties to the extent as provided for in this Article 46 itself. TEU itself remained unchanged by the Treaty of Amsterdam. Nonetheless, explicit Treaty recognition of this power legitimises the Court's role and may provide an impetus for future rulings. Accordingly, an examination of the requirements imposed by the ECHR on the availability of a right to compensation is called for.