Opinion of the Advocate General — ECLI:EU:C:2025:269
Date: 2025-04-10
Language of the case: English
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary, Mr J is a 22 year-old Christian man from India. He arrived in 
Ireland on 16 March 2023. He slept rough for a number of nights before presenting 
at the International Protection Office (“IPO”) office on 20 March 2023 when he 
lodged his claim for international protection. As with Mr A, Mr J was given a 
Dunnes Stores voucher for €25 on his initial presentation to the IPO on 20 March 
2023. He spent some 64 nights sleeping rough until he was granted accommodation 
on 22 May 2023. He spent his nights sleeping on the streets of Dublin near the IPO 
offices in a tent provided to him by a charitable organisation. He averred that it was 
cold, wet and frightening. He feared each night that his tent would be set on fire by 
people who had targeted other international protection applicants. He was often 
hungry. 
4. Mr J submitted a vulnerability assessment form, with the help of his 
solicitors, on 16 May 2023 but his application to be assessed as vulnerable was not 
accepted. 
5. Mr J received a tent, food and clothes over the period he was street 
homeless from a charity. He says that he sometimes got food from charitable 
organisations. There were some nights where both centres were closed and he had 
to use what little food he had on hand until one of the centres opened the next 
 
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morning. Mr J averred that homeless services available to him were limited and 
that there were many people using inadequate facilities so that he would often have 
to wait hours to take a shower or charge his phone. He was unable to keep up with 
his hygiene needs and felt very unclean most of the time which made him 
miserable. 
6. Mr J did not find out about his entitlement to the Daily Expenses Allowance 
(“DEA”) until 17 April 2023, which he then applied for. Mr J received his first 
DEA payment (of €5.54 per day/€38.80 per week) on 21 April 2023 which 
included payments backdated to 20 March 2023. Mr J needed but could not afford 
clothes and toiletries and would spend the money he received on food for when he 
could not get food from the homeless centres. 
7. Mr J made three applications for additional needs payments (“ANP”). The 
first was applied for and granted on 28 March, in the sum of €100. A second ANP 
application on 7 April was refused. A third application was made on 6 April and 
granted some 7 weeks later on 28 May, in the sum of €120, by which time he had 
already been accommodated. 
8. Mr J averred that he became desperate and was scared for his future and his 
wellbeing. He felt alone and afraid. He averred that he had some very dark 
moments when he thought he could not go on. He felt worthless and did not think 
that it would ever change or get better. He averred that he could not sleep well in 
his tent because of the cold and wet weather. He developed serious digestive 
problems when living on the streets (he thinks through stress, worry and poor diet) 
and lost a lot of weight. He averred that there was no protection when living on the 
streets and that on many nights racist individuals would come to the IPO building 
where he was living with other applicants and threatened to burn down their tents. 
Mr J averred to being terrified. 
9. Mr J said that his backpack and belongings were stolen from his tent, 
leaving him with nothing. He averred that the weekly payment of €38.80 was not 
enough to help him replace his belongings and that he was left wearing the same 
clothes for a month. Mr J averred that this period was the worst of his life and that 
it changed him forever. 
10. Mr J was provided with accommodation on 22 May 2023, after 64 days of 
street homelessness. 
Legal Context 
The Charter 
 
11. Article 1 of the Charter is titled ‘Human dignity’ and provides: 
“Human dignity is inviolable. It must be respected and protected.” 
 
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12. As is noted in the Explanations Relating to the Charter of Fundamental 
Rights (2007/C 303/02): 
“The dignity of the human person is not only a fundamental right in itself 
but constitutes the real basis of fundamental rights. The 1948 Universal 
Declaration of Human Rights enshrined human dignity in its preamble: 
‘Whereas recognition of the inherent dignity and of the equal and 
inalienable rights of all members of the human family is the foundation of 
freedom, justice and peace in the -world.’ In its judgment of 9 October 2001 
in Case C-3 77/98 Netherlands v European Parliament and Council [2001] 
ECR I-7079, at grounds 70 – 77, the Court of Justice confirmed that a 
fundamental right to human dignity is part of Union law. 
It results that none of the rights laid down in this Charter may be used to 
harm the dignity of another person, and that the dignity of the human person 
is part of the substance of the rights laid down in this Charter. It must 
therefore be respected, even where a right is restricted.” 
13. Article 47 of the Charter is titled “Right to an effective remedy and to a fair 
trial” and provides: 
“Everyone whose rights and freedoms guaranteed by the law of the Union 
are violated has the right to an effective remedy before a tribunal in 
compliance with the conditions laid down in this Article …” 
14. The Explanations Relating to the Charter of Fundamental Rights (2007/C 
303/02) note as follows in respect of Article 47: 
“… in Union law the protection is more extensive since it guarantees the 
right to an effective remedy before a court. The Court of Justice enshrined 
that right in its judgment of 15 May 1986 as a general principle of Union 
law (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 
15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 
3 December 1992, Case C-97/91 Borelli [1992] ECR 1-6313). According to 
the Court, that general principle of Union law also applies to the Member 
States when they are implementing Union law.” 
The rule of law and Article 19(1) TEU 
15. As is noted in Lenaerts, Gutman and Nowak EU Procedural Law (2nd ed 
OUP 2023) at para.4.10: 
“The rule of law is one of the values on which the Union is founded. In a 
Union based on the rule of law, individuals have a right to challenge before 
the courts the legality of any decision or other national measure relating to 
the application to them of a Union act. Indeed, the existence of judicial 
 
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review ensuring compliance with Union law is of the essence of the rule of 
law. In accordance with Article 19(1) TEU, judicial review in the Union 
legal order has been entrusted to both the Court of Justice of the European 
Union and the national courts and tribunals. National courts and tribunals, 
together with the Union Courts, have a duty to ensure that, in the 
interpretation and application of the Treaties, the law is observed. It follows 
from this that Article 19(1) TEU, which gives concrete expression to the 
principle of the rule of law, imposes upon Member States an obligation to 
provide remedies that are sufficient to ensure effective judicial protection 
for individuals in the fields covered by Union law. This includes a right to 
an effective remedy before an independent and impartial tribunal previously 
established by law” 
The Reception Conditions Directive (Recast) 
16. Directive 2013/33/EU (“the Directive”) determines the minimum standards 
for the reception of applicants for international protection, such as the applicants in 
this case. In particular, as acknowledged in the recitals: 
“(10) With respect to the treatment of persons falling within the scope of this 
Directive, Member States are bound by obligations under instruments of 
international law to which they are party. 
… 
(35) This Directive respects the fundamental rights and observes the 
principles recognised in particular by the Charter of Fundamental Rights of 
the European Union. In particular, this Directive seeks to ensure full respect 
for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 21, 
24 and 47 of the Charter and has to be implemented accordingly.” 
17. Article 17 of the Directive sets out the general rules on material reception 
conditions as follows: 
“1. Member States shall ensure that material reception conditions are 
available to applicants when they make their application for international 
protection. 
2. Member States shall ensure that material reception conditions provide an 
adequate standard of living for applicants, which guarantees their subsistence 
and protects their physical and mental health.” 
18. Article 18 of the Directive sets out the modalities for material reception 
conditions and provides in particular at para. 9: 
“9. In duly justified cases, Member States may exceptionally set modalities 
for material reception conditions different from those provided for in this 
Article, for a reasonable period which shall be as short as possible, when: 
(a) an assessment of the specific needs of the applicant is 
required, in accordance with Article 22; 
 
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(b) housing capacities normally available are temporarily 
exhausted. 
Such different conditions shall in any event cover basic needs.” 
19. The case law of the CJEU underscores the mandatory nature of these 
obligations: Case C-179/11 Cimade and GISTI ECLI:EU:C:2012:594; Case 
C-79/13 Saciri ECLI:EU:C:2014:103; Case C-233/18 Haqbin 
ECLl:EU:C:2019:956; Case C-422/21 Ministero dell’Interno v TO 
ECLI:EU:C:2022:616. As the CJEU held in Case C-79/13 Saciri 
ECLT.EU:C:2014:103 at para.35: 
“… the general scheme and purpose of Directive 2003/9 and the 
observance of fundamental rights, in particular the requirements of Article I 
of the Charter of Fundamental Rights of the European Union, under which 
human dignity must be respected and protected, preclude the asylum seeker 
from being deprived – even for a temporary period of time after the making 
of the application for asylum and before being actually transferred to the 
responsible Member State – of the protection of the minimum standards laid 
down by that directive (see Cimade and GISTI, paragraph 56).” 
Damages for Breach of EU law 
20. The requirements for an award of damages against a Member State for State 
liability for breach of an EU law were first set out in Joined Cases C-6/90 add 
C-9/90 Francovich ECLI:EU:C:1991:428 (in the context of a failure to implement 
a directive) as follows (at para 40): 
“The first of those conditions is that the result prescribed by the directive 
should entail the grant of rights to individuals. The second condition is that it 
should be possible to identify the content of those rights on the basis of the 
provisions of the directive. Finally, the third condition is the existence of a 
causal link between the breach of the State's obligation and the loss and 
damage suffered by the injured parties.” 
21. The Court in Francovich set out the rationale underpinning the principle of 
State liability for breach of EU law at para.33 as follows: 
“The full effectiveness of Community rules would be impaired and the 
protection of the rights which they grant would be weakened if individuals 
were unable to obtain redress when their rights are infringed by a breach of 
Community law for which a Member State can be held responsible.” 
22. The requirements for establishing State liability for breach of EU law were 
refined in Joined Cases C-46/93 and C-48/93 Brasserie/Factortame 
ECLI:EU:C:1996:79, at para 51: 
 
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“…Community law confers a right to reparation where three conditions are 
met: the rule of law infringed must be intended to confer rights on individuals; 
the breach must be sufficiently serious; and there must be a direct causal link 
between the breach of the obligation resting on the State and the damage 
sustained by the injured parties.” 
23. The CJEU elaborated on the second limb of the Francovich test (that the 
breach must be sufficiently serious) as follows: 
“55. As to the second condition, as regards both Community liability under 
Article 215 and Member State liability for breaches of Community law, the 
decisive test for finding that a breach of Community law is sufficiently serious 
is whether the Member State or the Community institution concerned 
manifestly and gravely disregarded the limits on its discretion. 
56. The factors which the competent court may take into consideration 
include the clarity and precision of the rule breached, the measure of 
discretion left by that rule to the national or Community authorities, whether 
the infringement and the damage caused was intentional or involuntary, 
whether any error of law was excusable or inexcusable, the fact that the 
position taken by a Community institution may have contributed towards the 
omission, and the adoption or retention of national measures or practices 
contrary to Community law.” 
24. While most of the Francovich damages case-law relates to failures of 
transposition, as noted in Brasserie/Factortame (at paras 32 to 34), State Liability 
applies to breaches of EU law no matter which organ of the Member State was 
responsible for the breach. 
Force Majeure 
25. The principle of force majeure stems from the maxim ad impossibilia nemo 
tenetur (no one is obliged to do the impossible: Opinion of Advocate General 
Mayras in Case 39/72 Commission v Italy ECLI:EU:C:1973:13.) 
26. It is well established that the concept of force majeure does not have the 
same scope in the various spheres of application of EU law, so its meaning must be 
determined by reference to the legal context in which it is to operate: C-12/92 
Huygen ECLI:EU:C: 1993:914 at para 30; C-263/97 The Queen v Intervention 
Board for Agricultural Produce, ex parte First City Trading ECLI:EU:C:1998:444 
at para 41; Case C-407/21 Union fédérale des consommateurs 
ECLI:EU:C:2023:449 (‘UFC’) at para 53. 
27. As the CJEU held in Case C-640/15 Vilkas ECLI:EU:C:2017:39 at paras 
53-54: 
 
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“53. It is apparent from settled case-law, established in various spheres of 
EU law, that the concept of force majeure must be understood as referring 
to abnormal and unforeseeable circumstances which were outside the 
control of the party by whom it is pleaded and the consequences of which 
could not have been avoided in spite of the exercise of all due care (see, to 
that effect, judgments of 18 December 2007, Société Pipeline Méditerranée 
et Rhône, C-314/06, EU:C:2007:817, paragraph 23; of 18 March 2010, 
SGS Belgium and Others, C-218/09, EU:C:2010:152, paragraph 44; and of 
18 July 2013, Eurofit, C-99/12, EU:C:2013:487, paragraph 31). 
54 However, it is also settled case-law that, since the concept of force 
majeure does not have the same scope in the various spheres of application 
of EU law, its meaning must be determined by reference to the legal context 
in which it is to operate judgments of 18 December 2007, Société Pipeline 
Méditerranée et Rhône, C-314/06, EU:C:2007:817, paragraph 25; of 
18 March 2010, SGS Belgium and Others, C-218/09, EU:C;2010:152, 
paragraph 45; and of 18 July 2013, Eurofit, C-99/12, EU:C:2013:487, 
paragraph 32). ” 
28. There also appear to be differing formulations of the parameters of the test 
which is perhaps a reflection of its sensitivity to context. While the case law is 
consistent in the requirement that force majeure can only arise in relation to 
abnormal/unusual and unforeseeable circumstances outside the control of the party 
relying on the defence, there appear to be some differences of expression of the 
precise limits of the defence. Thus, in Case 11/70 Internationale 
Handelsgesellschaft ECLI:EU:C: 1970:114 the Court (at para. 23) defined the 
applicable concept of force majeure (in the context of agricultural Regulations) as 
being not limited to absolute impossibility but to ‘unusual circumstances, outside the 
control of the importer or exporter, the consequences of which, in spite of the 
exercise of all due care, could not have been avoided except at the cost of excessive 
sacrifice’ (at para. 23). In Case C-640/15 Vilkas ECLI:EU:C:2017:39, in the context 
of a European arrest warrant framework decision, the test was put in terms of the 
consequences of unforeseen and unforeseeable actions not being avoided ‘in spite of 
the exercise of all due care’ by the authorities (para. 53), such concept to be 
‘interpreted strictly’ (at para. 56). This formulation was adopted most recently in 
Case C-407/21 Union fédérale des consommateurs ECLI:EU:C:2023:449 (at para. 
53). 
29. An arguably more arduous standard was applied in Case C-203/12 Billerud 
ECLI:EU:C:2013:664 in the context of a directive relating to greenhouse gas 
emissions, where the Court (relying on the judgment in Case C-154/78 Valsabbia v. 
Commmission ECLI:EU:C:1980:81 at para. 140) referred to external causes ‘which 
are inexorable and inevitable to the point of it making “objectively impossible” for 
the person concerned to comply with their obligations’ (at para. 31.) 
30. The Court has also emphasised that the defence will invariably be confined 
 
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in its temporal scope: Case C-640/15 Vilkas ECLI:EU:C:2017:39 para. 57. 
31. It is also well established that difficulties in its domestic legal order cannot 
justify a failure to observe obligations arising under EU law (Case C-407/21 Union 
federate des consommateurs ECLI:EU:C:2023:449, para. 72). Furthermore, force 
majeure cannot refer to difficulties of a domestic nature deriving from a Member 
State’s political or administrative organisation or because of a lack of powers, 
knowledge, means or resources: Case C-424/97 Haim, para. 28. 
32. As is noted in Prete Infringement Proceedings in EU Law (Wolters Kluwer 
2017) at para 2.05B: 
“The main constituent element of the concept of force majeure is thus the 
occurrence of an event outside the control of the person who relies on this 
line of defence, that is to say, something which he cannot influence. 
However, merely demonstrating that it was impossible for the Member State 
to comply in this instance may not be sufficient to ensure that such a line of 
defence is accepted. As Advocate General Kokott explained in the 
Aluminium Ingots case, force majeure is a concept which contains both an 
objective element and a subjective element: the former referring to 
abnormal circumstances outside the sphere of the party claiming force 
majeure, and the latter being connected with his obligation to guard against 
the consequences of abnormal events by taking appropriate steps (without 
making unreasonable sacrifices). With regard to the last element, a Member 
State must show that its authorities have made every reasonable effort to 
avoid or minimise the consequences of the event in question. Indeed, it 
follows from case law that a defence based on force majeure cannot be 
accepted in a situation in which, objectively, a diligent and prudent person 
would have been able to take the necessary steps to avoid the negative 
consequences flowing from the occurrence of the unforeseen event. In 
particular, the degree of diligence and prudence which must be 
demonstrated by a Member State can, in general be viewed as a function of 
the probability that the unforeseen event may occur: the more likely the 
event is to occur, the more significant the ex ante efforts that are required of 
the public administration.” 
Irish Law 
33. The Reception Conditions Directive (recast) is transposed into Irish law by 
the European Communities (Reception Conditions) Regulations 2018, SI 230/2018 
(‘the Regulations’). 
34. The Regulations define material reception conditions as being ‘provided to 
a recipient for the purposes of compliance with the Directive’ and that they 
constitute the following: 
 
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“(a) the housing, food and associated benefits provided in kind, 
(b) the daily expenses allowance, and 
(c) clothing provided by way of financial allowance under section 201 
of the Social Welfare Consolidation Act 2005.” 
35. Daily expenses allowance (‘DEA’) is defined as ‘that part of the material 
reception conditions that constitutes a weekly payment made, under a scheme 
administered by the Minister for Employment Affairs and Social Protection, to a 
recipient in order for the recipient to meet incidental, personal expenses.’ 
36. At regulation 4, the Regulations further define “provision of material 
reception conditions” as follows: 
“(1) A recipient shall, subject to these Regulations, be entitled to receive the 
material reception conditions where he or she does not have sufficient means 
to have an adequate standard of living. 
… 
(5) The Minister may, exceptionally and subject to paragraph (6), 
provide the material reception conditions in a manner that is different to that 
provided for in these Regulations where— 
(a) an assessment of a recipient’s specific needs is required to be 
carried out, or 
(b) the accommodation capacity normally available is 
temporarily exhausted. 
(6) The provision of the material reception conditions authorised by 
paragraph (5) shall— 
(a) be for as short a period as possible, and 
(b) meet the recipient’s basic needs.” 
37. The Regulations are mandatory in their terms and immediate. Even where 
derogation is permitted in exceptional circumstances, the Minister must still meet 
the recipient’s basic needs. This did not occur in the Applicant’s case for a period 
of nearly two months. 
38. As noted above, in Case C-79/30 Saciri ECLI:EU:C:2014:103 (with 
reference to the first Reception Conditions Directive 2003/9/EC), the ECJ held (at 
para 35): 
“In addition, the general scheme and purpose of Directive 2003/9 and the 
observance of fundamental rights, in particular the requirements of Article 1 
of the Charter of Fundamental Rights of the European Union, under which 
human dignity must be respected and protected, preclude the asylum seeker 
from being deprived – even for a temporary period of time after making of 
the application for asylum and before being actually transferred to the 
responsible Member State – the protection of the minimum standards laid 
down by that Directive ” (see Cimade & GSTI, para. 56).” 
 
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39. The Court also stated at para 47: 
“47. By its third question, the referring court asks, in essence, whether 
Directive 2003/9 is to be interpreted as precluding, where the 
accommodation facility specifically for asylum seekers are overloaded, the 
Member States from referring the asylum seekers to bodies within the general 
public assistance system, which are responsible for providing asylum seekers 
with the necessary financial aid. 
48. In that regard, it is necessary to bear in mind that, if the Member States 
are not in a position to grant the material reception conditions in kind, 
Directive 2003/9 leaves them the possibility of opting to grant the material 
reception conditions in the form of financial allowances. These allowances 
must, however, be sufficient to meet the basic needs of asylum seekers, 
including a dignified standard of living, and must be adequate for their 
health.” 
40. In this case, the Applicant was not granted sufficient financial allowances 
(or any other type of provision) in the alternative to actual provision of material 
reception conditions or even basic needs. 
41. A number of cases concerning international protection applicants who were 
left homeless came before the Irish courts in early 2023. One of those cases was SY 
v. Minister for Children, Equality, Disability, Integration and Youth [2023] IEHC 
187. In that case, the High Court […] held that the Minister was in breach of his 
obligations under the Regulations and Article 1 of the Charter in failing to provide 
an international protection applicant with accommodation, food or sanitary 
facilities, and granted the following declarations: 
(i) A Declaration that the Minister’s failure to provide to the applicant 
the “material reception conditions” pursuant to the European Union 
(Reception Conditions) Regulations 2018 is unlawful; 
(ii) A Declaration that the failure by the Minister to provide to the 
applicant the “material reception conditions” pursuant to European Union 
(Reception Conditions) Regulations 2018 is in breach of the applicant’s 
rights under Article 1 of the Charter of Fundamental Rights of the European 
Union. 
42. There was no appeal by the Minister against the judgment in SY and it is 
accepted by the Minister that the Applicants in these cases are entitled to the same 
declarations as their circumstances while street homeless were little different to 
SY’s circumstances. SY did not however claim damages. 
 
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Consideration of the questions referred 
Question 1 
43. Because the availability of the force majeure defence to the Respondents is 
the key issue in these cases a summary of the State’s arguments will be set out first. 
44. Force majeure is not relied upon by the Respondents as a defence to the 
claim that there has been a breach of their obligations under EU law to meet the 
basic needs of the applicant from the date of his application for international 
protection, but rather as a basis upon which the Applicant cannot meet the second 
condition for entitlement to damages in Brasserie/Factortame. The Respondents 
submitted that the breaches of the Applicant’s rights were not ‘sufficiently serious’ 
to give rise to an entitlement to damages because of the existence of unusual and 
unforeseeable circumstances. 
45. The Respondents have not pleaded a lack of financial resources in 
providing material reception conditions. Their case is that unprecedented numbers 
of Ukrainian refugees and international protection applicants overwhelmed the 
accommodation capacity for international protection applicants such that for a 
temporary period of four and a half months, single male non-vulnerable adults 
were left without accommodation but that the Respondents made every reasonable 
effort to secure such accommodation and to satisfy the provision of other reception 
needs including food, hygiene facilities and clothing. The Respondents pleaded 
that when faced with these difficulties, it ‘took all reasonable steps as 
expeditiously as possible to ensure that all material reception conditions were 
provided to all international protection applicants as soon as possible’. The State 
says it took all ‘reasonable steps/due care’ for a limited period of time. 
46. The Respondents submit that it was open to them, in light of 
Brasserie/Factortame, to run a force majeure defence to the damages claim 
notwithstanding that such a defence was not maintained in the ST case in respect of 
the breach of Regulations as the pre-requisites for obtaining damages were such as 
to permit a defence of force majeure notwithstanding that a breach of the relevant 
EU law by the State was not otherwise excusable. 
47. The Respondents argue that force majeure was contemplated by that part of 
the second limb which asks whether ‘the infringement and the damage caused was 
intentional or involuntary.’ The Respondents say that the force majeure 
circumstances which led to the breaches here were unintentional or involuntary in 
the legal sense. 
48. The Applicant submits that he satisfies the three limbs of the test for 
Francovich damages: the Directive and Regulations conferred rights on the 
Applicant (this was not disputed by the State); the breaches of those obligations 
were, on any view, serious; and there was a clear causal connection between the 
breach of the State’s obligations and the loss suffered by the applicants in the form 
 
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of the suffering and loss of dignity involved in forced street homelessness for 
lengthy periods. 
49. As regards the State’s force majeure case, the Applicant argues that it is 
incoherent to concede a breach but rely on force majeure as a defence to a claim 
for damages flowing from the breach. The State argues that the ‘sufficiently 
serious’ limb of the Brasserie/Factortame test entails a strict liability where the 
obligations in the Directive are clearly expressed in mandatory terms and do not 
provide for a derogation in the event of accommodation saturation; indeed, the 
opposite is the case. It is contended that the CJEU case law – Cimade and GISTI, 
Saciri, Haqbin and TO – supports this position. 
50. The Applicant also submits that force majeure could not arise in the 
specific context of an admitted breach of the inviolable/non-derogable right to 
dignity protected by Article 1 CFR. 
Question 2 
51. The Applicant submits that even if force majeure could in principle apply, it 
is not made out. The evidence does not bear out the State’s contention that it took 
all reasonable steps to ensure provision of the basic needs, including food and 
water, set out in the Regulations. This is particularly so where the State expressly 
pleaded that resources were not an issue. The failure of the State to provide 
sufficient financial assistance/vouchers to the applicant to enable him to source 
accommodation for himself is manifestly incompatible with a force majeure plea 
given that the State has expressly pleaded that resources were not an issue. The 
applicant submits that the Respondents made a policy choice to focus on global 
sourcing of accommodation at the expense of individual accommodation 
requirements and that their overall response involved too little too late. 
The proposed answers to the questions of the referring Court: 
Question 1: Where “force majeure” is not found as a defence in a 
Directive or implementing Regulations in issue, is such a defence 
nonetheless available as a defence to a Francovich damages claim for a 
breach of an EU law obligation that confers rights on individuals which 
derive from the fundamental right to human dignity contained in Article 1 
of the Charter (whether as a defence within the second limb of the 
Brasserie du Pécheur/Factortame test or otherwise)? 
Answer: Force majeure is not available as a defence to a Francovich 
damages claim for a breach of an EU law obligation that confers rights on 
individuals which derive from the fundamental right to human dignity 
contained in Article 1 of the Charter, having regard to the absolute, non-
derogable nature of that right. 
 
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Question 2: If the answer to question (1) is “yes”, what are the parameters 
and proper scope of that force majeure defence? 
Answer: In the context of a breach of the fundamental right to dignity 
protected by Article 1 CFR, a defence of force majeure is only available in 
the context of State liability for breach of EU law in circumstances where 
external causes which are inexorable and inevitable have made it objectively 
impossible for the person concerned to comply with their obligations. A 
defence based on force majeure cannot be accepted in a situation in which, 
objectively, a diligent and prudent person would have been able to take the 
necessary steps to avoid the negative consequences flowing from the 
occurrence of the unforeseen event. In particular, the degree of diligence 
and prudence which must be demonstrated by a Member State must be 
viewed as a function of the probability that the unforeseen event may occur: 
the more likely the event is to occur, the more significant the efforts that are 
required of the public administration. 
L. Frawley 
P. Brazil SC 
4 June 2024