Figure 5.1

In a flowchart, What type of breach has the State committed branches into, 5 sequences. They are, 1. Non-transposition of Directive, Liability in damages Francovich; 2. National legislation contrary to E U law; Liability in damages, Factortame; 3. Incorrect transposition of Directive; Liability in damages BT; 4. Administrative policy contrary to EU law, Liability in damages, Hedley Lomas. 5. Judicial breach of E U law, Liability in damages Kobler. Liability in damages Francovich points in a sequence to, Francovich test; Does the Directive give rights to individuals? Yes, what and to whom? Are those rights clear from the Directive? Yes, explain; Causal link between breach and loss? Yes, explain; State liable. All the other liabilities point in a sequence to, Factortame 3; Breach of rule of E U law to protect individuals? Yes, what and who? Sufficiently serious breach; Apply Factortame 3 criteria, supplemented by Kobler for judicial breaches, example clarity of E U law, intentional breach etcetera. Yes, explain; Causal link between breach and loss? Yes explain; State Liable. Does the directive, breach of rule, apply factortame, are those rights clear, both the causal link between all point to, no, why not. That points down to, state not liable.

Figure 5.1 Identifying the existence of State liability in a particular scenario

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