Direct and Indirect effect Flashcards
Revise
Direct Effect definition + case
‘A measure capable of direct enforcement in national courts has DE’- Van gend en loos 1963
Van Gend En Loos 1963
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
Van Gend En Loos, conditions for direct effect
- Clear & Precise
- Unconditional
- Not dependent on further action by a member state or the EU
What measures can have direct effect
- Treaty Articles (Van Gend En Loos)
- Regulations (Politi SAS)
- Decisions (Traunstein)
Petrie v Commission
- 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
Defrenne v SABENA
- Air stewardess paid less than males
- Art 119 EEC: equal pay for men and women
- Sufficiently clear to allow DE
Carbonari
- 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
Van Duyn
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
Direct effect criteria for directives
- Clear and precise
- Unconditional
- Time limit for implementation has expired
Ratti
- 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
Inter-Environnement
- 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”
Exception for time limit condition: Mangold
- Time limit for implementation hadn’t passed
- Dispute involved age discrimination
- ECJ APPLIED GENERAL PRINCIPLE OF EU LAW AND BYPASSED THE DIRECTIVE
Marshall v Southampton and southwest area health authority
- 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’
Foster v British Gas
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
Foster test
- State made ind. responsible for providing a public service
- Service provided under control of state
- Given special powers (beyond normally applicable in individual relations)
Doughty v Rolls Royce plc
- directive not directly effective because it didn’t fulfil the whole foster test.
Function of Indirect effect
- 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
Definition indirect effect
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)
Does indirect effect have Horizontal application + case
Yes. Marleasing
Von Colson
- 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
Marleasing (broad scope of application)
- 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)
Limit of indirect effect: Provision unambiguous
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)
Implementation time not expired
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
against principles of legal certainty and non-retroactivty
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
