- the date set for the implementation of the directive must have passed (again easy to establish)
- the body being claimed against (the individual or corporate body whose actions have affected the claimant) is "an emanation of the state". In the Foster v British Gas case a claimant would have to show that the body is one "whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals"
If a body fails to meet the criteria there may be two further avenues to pursue
- Indirect Effect - in the action against the body whose actions have affected the claimant (in the National Court, as above) - the Court may attempt to read the national law to give effect to the right. This interpretation approach can only go so far - it obviously doesn't apply if there is no national law to interpret - or if it would require doing "violence to the language" actually in the national legislation
- State Liability Action. Instead of bringing an action against the body who has directly affected the claimant - an action is brought - again in the national court, against the State. Sometimes this is referred to as the Francovich principle. It is necessary to show
- the rule of law infringed must be intended to confer rights on individuals;
- the breach must be sufficiently serious;
- and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties