vanessap
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To establish state liability do is the francovich case a good example?

In my senario two people would like to seek damages because as a result of a MS failing to transpose a directive they have been dissmised.

Is the Francovich case a good example here ? if not why not?
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GeneralStudent95
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Francovich established three elements for a successful claim:

(1) The instrument in question (the directive) must have been designed to confer a specific right
(2) This right must be clear, in the sense that it is evidently articulable.
(3) The claimant's loss must have been caused by the state's actions / inactions. Simple causation.

Brasserie du Pêcher synthesised (1) and (2) and added another criterion.

(1) The instrument must confer a specific right, which is evidentially articulable.
(2) The breach must be "sufficiently serious"
(3) The claimant's loss must have been caused by the state's actions / inactions. Simple causation

In relation to "sufficiently serious" if a Member States refuses to implement a Directive, or takes no action whatsoever to do so, the breach will be prima facie sufficiently serious - see Dillenkoffer v Germany.
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vanessap
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(Original post by GeneralStudent95)
Francovich established three elements for a successful claim:

(1) The instrument in question (the directive) must have been designed to confer a specific right
(2) This right must be clear, in the sense that it is evidently articulable.
(3) The claimant's loss must have been caused by the state's actions / inactions. Simple causation.

Brasserie du Pêcher synthesised (1) and (2) and added another criterion.

(1) The instrument must confer a specific right, which is evidentially articulable.
(2) The breach must be "sufficiently serious"
(3) The claimant's loss must have been caused by the state's actions / inactions. Simple causation

In relation to "sufficiently serious" if a Member States refuses to implement a Directive, or takes no action whatsoever to do so, the breach will be prima facie sufficiently serious - see Dillenkoffer v Germany.
Thank you.
Do you know of any cases which establish that a private company hired by the state is an emanation of the state?
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William Pitt
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(Original post by vanessap)
To establish state liability do is the francovich case a good example?

In my senario two people would like to seek damages because as a result of a MS failing to transpose a directive they have been dissmised.

Is the Francovich case a good example here ? if not why not?
Francovich is the perfect example:

Directive 1) must confer rights upon individuals 2) content of which must be identifiable in the directive 3) there must be a casual link between the breach of that directive and damage sustained by the individual party

Brasserie case specified that the state must have manifestly infringed the result prescribed by the directive.

There are 4 possible scenarios in which MS can be brought into account:

1) non-implementation of the directive
2) improper implementation
3) incorrect implementation
4) breach of the directive
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vanessap
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(Original post by William Pitt)
Francovich is the perfect example:

Directive 1) must confer rights upon individuals 2) content of which must be identifiable in the directive 3) there must be a casual link between the breach of that directive and damage sustained by the individual party

Brasserie case specified that the state must have manifestly infringed the result prescribed by the directive.

There are 4 possible scenarios in which MS can be brought into account:

1) non-implementation of the directive
2) improper implementation
3) incorrect implementation
4) breach of the directive
Yea but I am a bit confused as state liability doesn't mean the individual is suing the state but the body that caused the individual harm as a result of the state's failure to fulfil its obligations.
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William Pitt
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(Original post by vanessap)
Yea but I am a bit confused as state Can Peeta challenge the adoption of Regulation 2015/666/EU, which will prohibit him from carrying out his current job, in the CJEU, and/or challenge its validity before the domestic courts? doesn't mean the individual is suing the state but the body that caused the individual harm as a result of the state's failure to fulfil its obligations.
You would need to elaborate on this. What's "Cat Peeta" etc?

Individual can sue the state giving the Francovich are fulfilled. That means vertical DE.

If the case (which you have not explained) involves a private party unaffiliated with the state, then horizontal DE can take place by the 1) general principle of law 2) indirect effect 3) incidental effect and 4) enlarged conception of the state (public-owned company is also the state) and 5) when involves a regulation.

Your case seems to involve a regulation which is directly reliable by individuals.
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vanessap
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(Original post by William Pitt)
You would need to elaborate on this. What's "Cat Peeta" etc?

Individual can sue the state giving the Francovich are fulfilled. That means vertical DE.

If the case (which you have not explained) involves a private party unaffiliated with the state, then horizontal DE can take place by the 1) general principle of law 2) indirect effect 3) incidental effect and 4) enlarged conception of the state (public-owned company is also the state) and 5) when involves a regulation.

Your case seems to involve a regulation which is directly reliable by individuals.
Sorry i meant to bit confused as state liability doesn't mean the individual is suing the state but the body that caused the individual harm as a result of the state's failure to fulfil its obligations.

The case basically involves A being sacked by company X for being obese.
private company,Directive 2003/64/EC cannot be enforced against it by A. Even if a Court were to find that the Directive can be enforced against it, X claims that as their employees are armed and serve on armed ships then they should come under the definition of “armed forces” (as referred to in Article 3(4) of the Directive) and are therefore exempt from the provisions of the Directive.

The directive basically prevent discrimination in employment on the basis of
age. It doesnt apply to armed forces
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GeneralStudent95
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(Original post by vanessap)
Sorry i meant to bit confused as state liability doesn't mean the individual is suing the state but the body that caused the individual harm as a result of the state's failure to fulfil its obligations.

The case basically involves A being sacked by company X for being obese.
private company,Directive 2003/64/EC cannot be enforced against it by A. Even if a Court were to find that the Directive can be enforced against it, X claims that as their employees are armed and serve on armed ships then they should come under the definition of “armed forces” (as referred to in Article 3(4) of the Directive) and are therefore exempt from the provisions of the Directive.

The directive basically prevent discrimination in employment on the basis of
age. It doesnt apply to armed forces
If the Directive - correctly implemented - would not have applied to the situation, which you seem to suggest is the case, then there is no claim whatsoever. The last test in Francovich is one of causation: if, as in your case, the Directive provides an exemption for the armed forces, even if the Directive was implemented correctly it wouldn't have made a difference. There is no Francovich liability therefore.
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