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The Coherence of EU LawThe Search for Unity in Divergent Concepts$
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Sacha Prechal and Bert van Roermund

Print publication date: 2008

Print ISBN-13: 9780199232468

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199232468.001.0001

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Divergence and the Francovich Remedy in German and English Courts

Divergence and the Francovich Remedy in German and English Courts

Chapter:
(p.233) 10 Divergence and the Francovich Remedy in German and English Courts
Source:
The Coherence of EU Law
Author(s):

Martina Künnecke

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199232468.003.0010

This chapter assesses the extent to which the common law system differs from a codified system in the application of the Francovich principle and the extent to which this results in divergence. A comparison of the English and German law of state liability suggests that it is easier to achieve an integration of the Francovich remedy in English courts than it is in German courts. In a more pragmatic case-by-case approach, English courts have successfully embedded the Francovich remedy into English law. The German position, on the other hand, is marked by a more reluctant attitude. Case examples have shown that the German Federal High Court (BGH, Bundesgerichtshof) does not favour a Europeanized version of the codified tort liability, possibly leaving this to the legislature.

Keywords:   state liability, Germany, England, Brasserie du Pécheur SA v Germany, national courts

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