Fnk
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Hey I need some to explain to me the position of the principle of francovich and was it changed later with the case of factortame. Why was the condition of seriousness of breach problematic ????
Please help :confused:
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RumpeIstiltskin
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(Original post by Fnk)
Hey I need some to explain to me the position of the principle of francovich and was it changed later with the case of factortame. Why was the condition of seriousness of breach problematic ????
Please help :confused:
In Francovich Italy had failed to implement a directive protecting employees when their employer goes insolvent. Since the directive didn't have direct effect Francovich would have been left without a remedy so the court developed the principle of a state liability.

"The full effectiveness of [Union] 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 [European] law for which a Member State can be held responsible…It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of [European] law for which the State can be held responsible is inherent in the system of the Treaty"

The 3 conditions of state liability from Francovich were that:
(1) the rule of law infringed must be intended to confer rights on individuals
(2) It should be possible to identify content of the rights
(3) must be a direct causal link between the breach of the obligation and the damage suffered

The second condition was changed in the case of Brasserie du Pecheur so that the breach must be sufficiently serious and the court justified this saying that "the limited liability of the legislature is a common constitutional principle of the member states" and Member States "must not be hindered by the prospect of actions for damages".

Hope that helps
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