Direct and Indirect effect

Question 1

Direct Effect definition + case

Answer 1

‘A measure capable of direct enforcement in national courts has DE’- Van gend en loos 1963

Question 2

Van Gend En Loos 1963

Answer 2

For rights under EU law to be effective, they must be capable of Direct Effect.
Facts:
- Import of chemicals. Germany to Netherlands
- Importer challenged customs tariff
- Sought to rely directly upon Art 25 EC against national legislation – ‘customs duties or charges having equivalent effect will be prohibited

Question 3

Van Gend En Loos, conditions for direct effect

Answer 3

• Clear & Precise
• Unconditional
• Not dependent on further action by a member state or the EU

Question 4

What measures can have direct effect

Answer 4

1. Treaty Articles (Van Gend En Loos)
2. Regulations (Politi SAS)
3. Decisions (Traunstein)

Question 5

Petrie v Commission

Answer 5

• Complaint to Commission about nationality discrimination: not pursued
• Sought access to the case documents
• Art 255 EC:
  ‘every citizen of the Union shall have a right of access … subject to the principles and conditions to be defined’
• HELD: Not unconditional

Question 6

Defrenne v SABENA

Answer 6

• Air stewardess paid less than males
• Art 119 EEC: equal pay for men and women
• Sufficiently clear to allow DE

Question 7

Carbonari

Answer 7

• Action to enforce a right to ‘appropriate remuneration’ for trainee doctors
• ECJ: obligation to pay remuneration was clear
• BUT no indication of what level or who pays  not unconditional

Question 8

Van Duyn

Answer 8

DIRECTIVES CAN HAVE DIRECT EFFECT

• She wanted to work for the Church of Scientology in the UK, but refused entry
• Sought to rely on Directive 64/221 in national court on limits to the restrictions to free movement
• Measures must be based exclusively on personal conduct
• Direct effect possible but van duyn failed on facts

Question 9

Direct effect criteria for directives

Answer 9

• Clear and precise
• Unconditional
• Time limit for implementation has expired

Question 10

Ratti

Answer 10

• labelling solvents in accordance with EC directives
• Italian law had higher standards so he was prosecuted
• couldn’t rely on directives until implementation period had expired

Question 11

Inter-Environnement

Answer 11

• EC Directive on Waste Disposal: deadline: 1 April 1993
• Belgian rules contrary to Directive adopted in June 1992
• Challenged in national courts
• CJEU: during the implementation period states “must refrain from taking any measures liable seriously to compromise the result prescribed”

Question 12

Exception for time limit condition: Mangold

Answer 12

• Time limit for implementation hadn’t passed
• Dispute involved age discrimination
• ECJ APPLIED GENERAL PRINCIPLE OF EU LAW AND BYPASSED THE DIRECTIVE

Question 13

Marshall v Southampton and southwest area health authority

Answer 13

• Dismissed when she turned 60 (men retired at 65)
• At the time not forbidden in UK law
• She sought to rely directly on the Equal Treatment Directive
• ECJ: directives can have ‘vertical’ direct effect against ‘the state’ but no horizontal DE against private parties
• capacity of action is irrelevant (public authority or employer)
• Public hospital = part of the ‘state’

Question 14

Foster v British Gas

Answer 14

Female employees of British Gas were dismissed at 60 (men 65)
British Gas (then a nationalised industry) argued they were not part of the state
BUT
monopoly established by statute
subject to direction by the relevant Minister
= Emanation of the state

Question 15

Foster test

Answer 15

1. State made ind. responsible for providing a public service
2. Service provided under control of state
3. Given special powers (beyond normally applicable in individual relations)

Question 16

Doughty v Rolls Royce plc

Answer 16

• directive not directly effective because it didn’t fulfil the whole foster test.

Question 17

Function of Indirect effect

Answer 17

• Enables individuals to enforce their EU rights before national courts
• May be available to an individual where Direct Effect is not
• Part of the system that ensures effectiveness of EU law

Question 18

Definition indirect effect

Answer 18

If national law falls within the scope of EU law (marleasing), national courts have an obligation to interpret that law consistently with EU law (Von Colson)

Question 19

Does indirect effect have Horizontal application + case

Answer 19

Yes. Marleasing

Question 20

Von Colson

Answer 20

• ECJ established indirect effect here
• Unlawful sex discrimination (prohibited under EU Directive)
• NO direct effect, not sufficiently clear and precise
• Sanctions provided in the national law too weak
• German law was applied in a way that did not guarantee effectiveness of EU law
• Indirect effect allowed

Question 21

Marleasing (broad scope of application)

Answer 21

• Marleasing SA sought annulment of La Commercial
• Permitted under national law, but not under EU law
• National legislation was not enacted to transpose the Directive, but fell within its scope
• Established: indirect effect applies also to national laws not intended to implement Directives
• Indirect effect can be invoked in cases between private parties (horizontal application)

Question 22

Limit of indirect effect: Provision unambiguous

Answer 22

Wagner:

• Insolvency Directive protects workers’ wages
• Spanish law did not apply to higher management
• Wagner Miret wanted Spanish law interpreted in conformity with the EU Directive
• CJEU: it was not possible – national law was unambiguous
• Remedy = sue the Member State for failure to implement the Directive (state liability)

Question 23

Implementation time not expired

Answer 23

Adeneler:

• Duty to interpret national law in conformity with a Directive ‘exists only once the period for its transposition has expired’
• BUT during the implementation period, national courts must avoid interpretations of national law that would ‘seriously compromise’ the objectives of the Directive
• cf. Inter-Environment principle

Question 24

against principles of legal certainty and non-retroactivty

Answer 24

Berlusconi:

• Changes to the law on false accounting in Italy
• Incompatibility with Company Law Directives
• Indirect effect cannot aggravate an individual’s criminal law liability

Kolpinghuis:

• Breach of EU directive on water, but Dutch law had not yet changed
• Indirect effect should not be used to impose new criminal liabilities on individuals
• It did not matter whether the time limit for implementing the Directive had yet expired