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What are Francovich damages and how does Brexit impact the right to claim?

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Published on LexisPSL on 05/04/2019

The following Public Law Q&A provides comprehensive and up to date legal information covering:

  • What are Francovich damages and how does Brexit impact the right to claim?

What are Francovich damages and how does Brexit impact the right to claim?

Damages may be available from an EU Member State if it is found to have breached an individual's right under an EU law provision which has direct effect, or failed to transpose the relevant provision correctly, which has led to damage to that individual that is ‘sufficiently serious’. This is known as the Francovich rule.

In Francovich and subsequent cases, the EU courts have held that the violation of EU law by a Member State may give rise to a claim for damages by an injured party in the following circumstances:

  1. the EU law was intended to confer rights on individuals

  2. the breach is 'sufficiently serious', and

  3. there is a direct causal link between the breach and the loss suffered

It is for the defaulting Member State to make reparation for a breach under its own substantive and procedural law. In English law, an action for breach of statutory duty has been held to be an appropriate means of enforcing the right to damages for breach of an EU law right, the statue in question being the European Communities Act 1972 (ECA 1972).

For background reading see, Commentary: Damages in public law: Atkin's Court Forms [106] and Damages for breach of European Union legislation: Atkin's Court Forms, Administrative Court [107].

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