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EU Law, Sup 5 Question 4
Marie's position is a paradigmatic example of why the European Court in Francovich developed the principle of state liability which provides a right to damages where a Member State has breached Community law, causing loss to the applicant. Marie cannot avail herself of direct effect of Directive 12/08 as the nursery is uncontroversially a private body (Foster v British Gas) and Marshall v Southampton confirmed that in such a 'horizontal' situation a directive cannot be directly effective. Marie's best option is to sue France for a breach of EU law.
A few uncertainties within the Francovich principles were later refined by Brasserie du Pecheur and Factortame III and the law today is as follows. An individual may claim damages from a Member State if: the prescribed result by the directive grants rights to individuals; the breach of EU law is sufficiently serious; and there exists a causal link between the Member State's breach and the loss suffered by the individual. In paragraph 65 of Brasserie du Pecheur the Court notes that this link will be assessed by the national court who must ensure that the criteria they employ are no less favorable than similar national claims and that they do not make it practically impossible to obtain reparation.
Assessing each in turn: First, it lies at the very heart of Directive 12/08 to confer rights on individuals. The present right is the child's right to be in qualifiedly capable hands, and since the child is too young to bring a claim, Marie may do so in her place. Alternatively, this condition may be satisfied by the strong logic in holding that Directive 12/08 intended to confer on parents of
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