Chapter 4

Question 1

Articles 169 EEC (Article 258 TFEU)

Answer 1

Empowered the Commission to bring a case to the COJ against a Member State for not fulfilling its Treaty Obligations.

Question 2

Article 170 EEC (Article 259 TFEU)

Answer 2

Provided that a Member State can bring a case to the COJ against another Member State

Question 3

Article 177 EEC (Article 267 TFEU)

Answer 3

Provides for national courts to refer to the COJ questions on the interpretation of the EEC Treaty

Question 4

Article 189 EEC (Article 288 TFEU)

Answer 4

Provides that REGULATIONS are binding and directly applicable within the Member States. BUT no specific ref within the EEC Treaty to obligations under any other form of EEC Law being directly enforceable in national courts

Question 5

Principle of Supremacy of EU Law

Answer 5

Q: How should conflicts between National Law and EU Law be resolved?

Question 6

Internationale Handelsgesellschaft (1970)

Answer 6

Reinforcement of EU Supremacy Principle: EU Law to take precedence even over National Constitutional Law of a Member State

Question 7

Simmenthal SpA (1978)

Answer 7

Futher Reinforcement of EU Supremacy Principle: National Court must not wait for a national measure which conflicted with EU Law to be set aside by a national authority. Need to give effect to the EU Law without waiting. The ABSOLUTE nature of the doctrine/principle reinforced.

Question 8

Simmenthal SpA (1978)

Answer 8

Futher Reinforcement of EU Supremacy Principle: National Court must not wait for a national measure which conflicted with EU Law to be set aside by a national authority. Need to give effect to the EU Law without waiting. The ABSOLUTE nature of the doctrine/principle reinforced.

Question 9

“Supremacy”?

Answer 9

The term has never been used by the COJ. Rather, “precedence” or “priority” over the national law of the Member States.

Question 10

COJ Reasoning on Van Gend En Loos

Answer 10

That Article 12 EE (now 30 TFEU) fulfills the CRITERIA for Direct Effect: “The wording of Article 12 contains a CLEAR and UNCONDITIONAL prohibition which is not a positive but a negative obligation”…

Question 11

Defrenne v SABENA (1976)

Answer 11

• Sex discrimination claim by an air hostess Defrenne against employer Belgian Airline
• Article 119 (157 TFEU)
• Held the Article 119 was sufficiently clear and precise + unconditional to have direct effect to be enforced in national courts against DIRECT Discrimination.
• It distinguished however it was not sufficiently clear enough to enforce against more INDIRECT forms (or disguised) forms of discrimination.

Question 12

Key cases on whether a provision is “sufficiently clear and precise”

Answer 12

• Defrenne v SABENA (1976)

- Frankovich & Bonfaci v Italian Republic (1991)

Question 13

Defrenne v SABENA (1976)

Answer 13

• Sex discrimination claim by an air hostess Defrenne against employer Belgian Airline
• Article 119 (157 TFEU)
• Held the Article 119 was sufficiently clear and precise to have direct effect to be enforced in national courts against DIRECT Discrimination.
• It distinguished however it was not sufficiently clear enough to enforce against more INDIRECT forms (or disguised) forms of discrimination.

Question 14

Frankovich & Bonifaci v Italian Republic (1991)

Answer 14

• Directive 80/987 on the event of bankruptcy of a company the employees can claim their outstanding wages from a guarantee institution established by the Member State.
• Case here: Italy had not implemented this directive.
• Could Cs rely on this unimplemented Directive to enforce their claim?
• Answer would depend on whether the Directive has Direct Effect*
• Held: even though provisions of Directive sufficiently clear, facts of this particular case not clear. NO Direct effect.

Question 15

What is the Treaty Article imposes not a negative but a POSITIVE obligation?

Answer 15

Van Gend En Loos - Negative.

Positive obligation appear on its face to be necessarily conditional. BUT fixed by the meeting of the deadline passing.

Question 16

Case that said positive obligations of Treaty Articles can have Direct Effect?

Answer 16

Alfons Lutticke GmbH v Hauptzollamt Saarlouis (1966)

- On the scope of Article 110 TFEU

Question 17

Article 288 TFEU

Answer 17

• Regulations and Decisions: BINDING form of EU Law. Both are capable of being directly effective.

Question 18

Franz Grand v Finanzamt Traunstein (1970)

Answer 18

Regulations are Directly APPLICABLE, and therefore “by virtue of their nature capable of producing direct effects”

Question 19

Antonio Munoz y Cia SA v Frumer Ltd (2002)

Answer 19

Regulations can have direct effect both Vertically against Member States and Horizontally against Private Parties AS LONG AS they still comply with the Van Gend en Loos criteria

Question 20

Azienda Agricola Monte Arcosu v Regione Autonoma della Sardegna (2001)

Answer 20

Regulations did NOT have direct effect because the provisions specifically required Member States to define the phrase “farmer practising farming as his main occupation”. This meant Member States had to take further measures to implement the provisions.

Question 21

Carp Snc di L. Moleri v Corsi v Ecorad Srl (2007)

Answer 21

Decisions can have Direct Effect.

But only against the party to whom the decision was addressed.

Question 22

Direct Effect of Recommendations and Opinions

Answer 22

These are NOT BINDING forms of EU law. Not capable of having direct effect.

Question 23

Grimaldi v Fonds des Maladies Professionnelles (1989(

Answer 23

Recommendations and opinions are not capable of having Direct Effect.

Question 24

Direct Effective of DIRECTIVES

Answer 24

• Initial problem: that directives are “inherently conditional”. So how can they satisfy the Van Gend en Loos criteria?

Question 25

Article 288 TFEU’s Definition of Directive ( + why this can be prolematic for directives’ capacity to have Direct Effect)

Answer 25

Defines directives as only binding on Member States and that they always have to be implemented by those Member States. This seems like a condition. Van Gend en Loos criteria: unconditionality*

Question 26

Van Duyn v Home Office (1974)

Answer 26

To overcome this “unconditional” limitation for directives.

• COJ said directives COULD have Direct Effect as long as they satisfy the Van Gend En Loos Criteria
• Dutch scientologist offred work as a secretary at Church of Scientology in UK. Refusd entry into UK.
• Article 45 TFEU: Free Movement of Workers, subject to derogations justified on the grounds of public policy, security or health.
• Van Duyn relied on provision of Article 3 of Directive 64/221 (now Directive 2004/38) to rely on for her claim.
• COJ Held: Directive CAN have Direct Effect.
• First Justification for this (the one that met many hate): That it would be incompatible with the binding effect of directives to exclude direct effect + undermine the competent authority of a directive.

Question 27

Why was Van Duyn v Home Office received with much complaint/criticism by Member States?

Answer 27

They did not like the first justification provided by COJ on the whole “effectiveness” of the binding effect of Directives. Directives still fail the Van Gend en Loos test.

Question 28

What did COJ do?

Answer 28

In the case Pubblico Ministero v Ratti (1979), new justification was provided.

Question 29

Significance of Pubblico Ministero v Ratti (1979)

Answer 29

1. Addressed the case of when a Member State simply fails to implement a Directive.
2. With regards to Justification made by Court to shut up the rebellious national courts:
   - Member States cannot rely against individuals on their OWN failure to perform the obligations that the Directive entails.
   - Also, the “deadline passing” rationale: satisfies the unconditional criteria from Van Gend en Loos test.
   - Rationale succeeded in convincing rebellious National courts to accept the Direct Effect of Directives.

Question 30

Article 297 TFEU

Answer 30

Directive must be implemented either by the date specified in the directive, OR, if the directive is silent, within 20 days of publication of the directive in the Office Journal.

Question 31

Facts of Pubblico MInistero v Ratti (1979)

Answer 31

Ratti head of a company whose board of directors had decided to package its solvents in conformity with Directive 73/173 and apply Directive 77/728 to its varnishes.
Directives had not been implemented by Italian Law.
Ratti prosecuted for infringing Italian law (more stringent than the directive).
Defence: To rely on the Directives.
Held: Different outcomes for each of the Directive.

• Directive 73/173: Direct Effect. Deadline had passed.
• Directive 77/728: No Direct Effect. Deadline not passed.

Question 32

Verbond van Nederlandse (VNO) v Inspecteur der… (1977)

Answer 32

Directive can have Direct Effect where a Member State has only partially or incorrectly implemented the Directive. AS LONG AS the date of the implementation has passed.

Question 33

Marks & Spencer plc v Commissioners of Customs & Excise (2002)

Answer 33

Individuals can rely on Directives even if the Directive has been completely and correctly implemented into national law, if it is not being applied in such a way as to achieve the result sought by it.

Question 34

Marshall v Southampton and South West Area Health Authority (Teaching) (No. 1) (1986)

Answer 34

Directive CANNOT have Direct Effect against a private entity.
Article 288 TFEU says Directives are only binding on Member States to whom they are addressed.

• Concerned a female dietician, dismissed on the ground that she had passed the compulsory retiring age applicable to women.
• Complained her dismissal violted Directive 76/207 = The Equal Treatment Directive (men can work till 65; women to 60)
• Held: Horizontal Effect against Private Individual not possible. But the Health Authority was deemed to be the “State” (Directive against the State regardless of the capacity the State is acting in)

Question 35

Dori v Recreb Sri (1994)

Answer 35

A-G Lenz argued that COJ SHOULD find Directives capable of horizontal direct effect.
This was not taken up.
Continued with the only vertical direct effect decision.

Question 36

“State”

Answer 36

• Health Authorities
• Tax Authorities (Becker v Finazamt…)
• Local or Regional Authorities (Fratelli Costanzo)
• A Constitutionally Independent Police Force responsible for the maintenance of public order and safety (Johnston v Chief Constable of the RUC)

Question 37

*Foster v British Gas Plc (No. 1) (1990)

Answer 37

The Court provided a specific criteria for determining “An Emanation of the State”
- The 2 Tests:
Bipartite Test
Tripartite Test

Question 38

Facts of the Foster v British Gas Plc (1990) Case

Answer 38

6 women forced to retire at age 60 in accordance with policy of British Gas.
Sought to rely on Directive 78/207 = The Equal Treatment Directive
At the TIME of the dismissal, British Gas Nationalised (subsequently been privatised)
Held: AT THE TIME of dismissal, it had been a body of such a type that the applicants ARE entitled to rely directly upon the Directive

Question 39

Directive 78/207

Answer 39

Equal Treatment Directive

• Used for:Marshall v Southampton Health Authority
• Used for Foster v British Gas Plc

Question 40

Bipartite Test

Answer 40

Held in Paragraph 18
Organisations that are either:
1) Subject to the authority or control of the State; OR
2) with special powers beyond those which result from the normal rules applicable to relations between individuals

Question 41

Tripartite Test

Answer 41

Held in Paragraph 20
Organisations that are ALL:
1) Has been made responsible, pursuant to a measure adopted by the State, for providing a public service; AND
2) Is under the control of the State; AND
3) Has for that purpose special powers beyond those which result from normal rules applicable to relations between individuals.
is INCLUDED IN ANY EVENT among the bodies against which the provisions of a directive capable of having Direct Effect may be relied upon.

Question 42

Which test to apply?

Answer 42

Still uncertain

Question 43

Foster v British Gas (No. 2) (1991)

Answer 43

Applied Tripartite Test

Held: British Gas is an Emanation of the State.

Question 44

Doughty v Rollys Royce Plc (1992)

Answer 44

Applied Tripartite Test
Held: Rollys Royce is NOT an emanation of the state (even though all its shares is owned by the Government and its nominees; it nonetheless operated as a COMMERCIAL undertaking)

Question 45

Griffin v South West Water Services Ltd (1995)

Answer 45

Applied Tripartite Test

Held: The privatised water company IS an emanation of the state

Question 46

National Union of Teachers v Governing Body of St Mary’s Church of England School (Aided) Junior School (1997)

Answer 46

Declined to use Tripartite Test.
Applied the BIPARTITE Test.
Held: sufficient to say it is an emanation of the state. Public service by a school which had entered the state school system. Enough to be sufficient. No need to demonstrate any special powers.

Question 47

Kampelmann v Landschaftsverband… (1997)

Answer 47

A claim against the regional authority (“Landschaft…”).
Applied the BIPARTITE Test.
Used the “OR” application.

Question 48

Sozialhilfeverband Rohrbach v Arbeiterkammer… (2005)

Answer 48

Bipartite Test cited again here.
Held: 2 Limited Liabilty Companies held to be emanation of the state.
The companies had been established + owned by a local authority association for the purposes of providing public service (social associations) to disabled persons by supplying them with a workplace.

Question 49

Salamander AG, Una Film Revue GmbH and Others v European Parliament and Council of the European Union (2000)

Answer 49

Application of Tripartite Test

• NOT an emanation of the state
• Yes controlled by the state
• But it did not provide a public service under measures adopted by the State and
• It did not have special powers

Question 50

Reiser Internationale Transporte GmbH v Autobahnen und Schnell… (2004)

Answer 50

Application of Tripartite Tet

• YES an emanation of the state
• An Austrian Company which had been incorporated a a private company BUT whose sole shareholder was the Austrian State
• All the “AND” criteria fulfilled

Question 51

Portgas (2013)

Answer 51

More recent case of Tripartite Test

• Private undertaking with the exclusive right to distrbute gas in the North Coast region of Portugal under a concession granted by a contract with the Portugese Government
• Left it to the National Court to determine whether or not the test satified (depending on what the Portugese State contributed/had relations with)

Question 52

Criminal Proceedings Against Berlusconi (2005)

Answer 52

Directive cannot have direct effect against the accused.
Because a directive, cannot by itself (independently of an implementing law) have the effect of determining OR aggravating the liability in criminal law of persons who act contrary to the provisions of the Directive.

Question 53

Limitations of Direct Effect

Answer 53

1. The need to satisfy the Van Gend en Loos criteria

2. Can only have VERTICAL effect

Question 54

Indirect Effect

Answer 54

Provisions can be used by national courts in INTERPRETING the meaning and scope of national legislaton

Question 55

The Von Colson Principle

Answer 55

Case regarding German female social workers who applied to work in service for a prison of a German Federal State. Rejected (The Equal Treatment Directive relied upon).

Question 56

Article 5 EC (Article 4(3) TEU)

Answer 56

Member States take “ALL APPROPRIATE MEASURES” to ensure that their obligations under EU law are fulfilled. This was drawn upon for the principle of indirect effect.

Question 57

Harz v Deutsche Tradax (1984)

Answer 57

Logic of reasoning of Von Colson applied.
but this case dealt with a PRIVATE company.
However this was irrelevant in terms of the approach of the COJ in bringing the same judgment as Von Colson: the INTERPRETIVE DUTY imposed on national courts by the principle of indirect effect still applies.

Question 58

Some ambiguities from Von Colson

Answer 58

1. To what extent could the principle of indirect effect apply to non-implementing laws + in particular those that were passed BEFORE EU made a rule in the area covered by the existing law?
2. What is the precise meaning of the expression “in so far as it is given discretion to do so under nationa law?” (as said in Von Colson?)

Question 59

*Marleasing SA v La Comercial International de Alimentacion (1990)

Answer 59

Spain
2 private companies
Concerned an EU Directive + Company Law Directive 68/151 + Pre-Existing Provisions of the Spanish Civil Code.
1. Direct Effect not available as a remedy (not a vertical effect here)
2. Indirect Effect available: the Court to interpret national law only in as far as it was possible to do so” (whether adopted before or after the directive… in order to achieve the purpose of the directive in order to achieve the result pursued…”

Question 60

Clarifications from Marleasing case

Answer 60

1. Provisions of an UNIMPLEMENTED Directive CAN be used to interpret national law, even in a purely horizontal action between individuals.
2. Directive CAN still be used to interpret the law whether if the national law had been made before or after the directive.

Question 61

Pfeiffer v Deutsches Rotes Kreuz

Answer 61

The obligation to interpret national law in conformity with EU law requires the national court to consider national law as a WHOLE

Question 62

Wagner Miret v Fondo di Garantia Salarial (1993)

Answer 62

.Spain
Directive 80/987
Spain already had a law
Once Directive was adopted, no further steps were taken to amend this law (considered unnecessary)
Also not possible without changing the meaning (the Spanish law provision which specifically excluded senior management from the ambit of the fund post-insolvency).
First, Direct Effect not available, as it was too imprecise to satisfy the conditions for Direct Effect.
Indirect Effect not available also for the reasons above. “As far a possible” interpretation of the national law not possible.

Question 63

Criminal Proceedings against Pupino (2005)

Answer 63

Following the Marleasing case, the COJ held that national courts are not required to interpret national law “contra legem” – against the clear meaning of its words.

Question 64

Adeneler v Ellinikos Organismos Galaktos (ELOG) (2006)

Answer 64

Reinforced by the COJ that obligation on national courts to interpret national law in conformity with a directive… ONLY ONCE the deadline for the implementation of the directive has passed.

Question 65

Criminal Proceedings against Kolpinghuis Nijmengen BV (1987)

Answer 65

Prevented a Member State from relying on a directive itself/independently of an implementing law to determine or aggravate criminal liability.

Question 66

HM Revenue and Customs v IDT Card Services Ireland Ltd (2006)

Answer 66

Outlined principles on the interpretative obligations in England and Wales
- No need to find statutory language as being ambiguous before interpreting legislation

• Interpretation can change the meaning of the legislation in a way that involves a substantial departure from the language (either more restrictively or expansively + can read words INTO the legislation)
• BUT the court must NOT REWRITE legislation in a way that goes BEYOND the interpretation. Cannot read into it that it goes against the grain of the legislation.
  No adoption of departing from the fundamental feature
• Interpretation to not entail court making a decision which involves making policy choices that it is not equipped to make or practical repercussions

Question 67

State Liability

Answer 67

The 3rd remedy

Question 68

Principle of State Liability

Answer 68

Allows an INDIVIDUAL to recover compensation from a Member State where he or she has incurred loss as a result of the failure of that Member State to fulfill its obligations under EU Law.

Can happen when BOTH DE and IE are available or when NEITHER are available.

Question 69

Frankovich & Bonifaci v Italian Republic (1991)

Answer 69

Employers of F & B: insolvent
Directive 80/987: required each Member State to establish a guarantee institution from which employees of insolvent companies could recover at least some of their lost wages…
Italy had not implemented the Directive.
Deadline had passed.

First, DE not available: conditions not met.
No national law to turn to (So IE not possible)
Turned to SL: that Italy had breached its obligations under EU Law for not implementing the Directive (Commission v ITaly (Case 22/87) 1989 had held this.
– This is a breach of Article 3 EC/ 4(3) TEU

Question 70

3 Conditions for Principle of State Liabilty to take effect (Frankovich Test)

Answer 70

1. Directive entails rights granted to INDIVIDUALS
2. Should be possible to identify the CONTENT of those rights on the basis of the provisions of the Directive.
3. Existence of a CAUSAL LINK between breach of State’s obligation + loss/damage suffered by the injured parties.

Question 71

Wagner Miret v Fondo di Garantia (revisited) 1993

Answer 71

It had failed on DE
Had failed on IE
But can apply SL here.
Senior managers could get compensated.

Question 72

Brasserie du Pecheur SA v Germany AND R v Secretary of State for transport ex p Factortame ltd (no 4) (1996)

Answer 72

Both cases. arising from primary Treaty provisions (not directive as was the case in Francovich).

Question 73

3 Conditions for Principle of State Liability to take effect (Brasserie Test)

Answer 73

1. The rule of law infringed must be intended to confer rights on INDIVIDUALS
2. **The breach must be SUFFICIENTLY SERIOUS.
3. CAUSAL LINK

Question 74

How to determine the “sufficiently serious”?

Answer 74

Is the breach EXCUSABLE?

Couple of elements to consider

• i.e. was beach intentional
• clarity and precision of the rule breached
• the extent to which Member States had adopted or retained national measures contrary to EU law…e tc.

If a breach is deemed sufficiently serious, no need to establish fault on the part of the Member State

Question 75

R v HM Treasury ex p British TELECOMMUNICATIONS plc (1996)

Answer 75

Good illustration of application of Brasserie Test

BT sought damages for losses suffered following the MANNER in which the UK implemented
Directive 90/351 – procurement procedures in the telecommunications sector.

In this case however, breach was deemed EXCUSABLE
reasons include:
- in good faith
- other member states also made same interpretation/mistake
- lack of precison in the relevant provision of the Directive

Question 76

R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) (1996)

Answer 76

Contrast to British Telecommunications case.

Left it for the national court to determine whether the 3rd condition for SL (on causation) was satisfied.

Dealt with Article 34 TFEU
and Article 36 TFEU
and Article 35 TFEU (regarding restrictio on free movement of goods)

Question 77

Dillenkofer v Germany (1996)

Answer 77

Court sought to reconcile the Frankcovich and Brasserie Test.

Regarding holiday package.
Directive which ensured money paid for a package holiday would be refunded if package organiser became insolvent.
First 2 conditions of Brasserie test met.
3rd left for the national court.

Question 78

Courage Limited v Crehan (2001)

Answer 78

Expansion of SL method.

Available for individuals by infringements of EU law arising from breaches of EU COMPETITION law by private undertakings

Question 79

Summary:

The crack of Direct Effect

Answer 79

• If the conditions are not met (Van Gend en Loos)

- Works only for vertical

Question 80

Summary:

The crack of Indirect Effect

Answer 80

• It may not be possible to interpret national law in a way that conforms with the object and purpoe of the relevant EU law
• National legislation may not exist to begin with – nothing to interpret

Question 81

Summary:

The crack of State Liability

Answer 81

• Will not be established where a breach is not considered “sufficiently serious”
• Can only provide compensation as its remedy. May not be what the claimant wants.