DIRECT EFFECT 2

Question 1

Part VI.1: Broad definition of “state” -first q what is state for vertical direct effect- 1st box here in handout = marshall case?

Answer 1

Broad definition of “state” for the purposes of vertical direct effect

Case 152/84, Marshall:

marshal was public health aurtoirt y= vertical case employed by them - she had to retire 62 mand 65 - clear case discrim based on gender

Question 2

Part VI.1: Broad definition of “state”- what was held?

Answer 2

CT SAID

HELD: A person can enforce an EU right enshrined in a directive in national proceedings against the state “regardless of the capacity in which the [state] is acting, whether employer or public authority” [49]

In Marshall, the state (public health authority) acted as employer. Art. 5 Equal Treatment Directive met the van Gend criteria.

Question 3

Part VI.1: Broad definition of “state”-Take home message for this case?

Answer 3

Individuals can enforce EU right enshrined in directive against the state in any capacity

Question 4

Part VI.1: Broad definition of “state”- what could you see

Answer 4

Ms. Marshall could rely on her EU right not to be discriminated against, and the UK court had to disapply the conflicting UK law.

what u can see here is again how direct effect and supremacy work together- = direct effect and the eu uk ct had to disapply the conflciting uk law - this is supreamcy

Criticism: Additional protection given to public sector employees is unfair
Arg.: Public health authority has no control over correct implementation of directive

criticm for wide interp of the state !! above! lets assume u work for tesco or uber or another private company, in that case u cannot rely on ur eu rights, agaaisnt ur emplyoer only sit of hortizontal direct effect- if u have right in directive u cannot enforce it against tesco, uber or other private entity- but if your employer public u can eforce e.g like HEALTH AUTHORITY and deom pwrsoecive of employer- that is not fair bc public health authority is not at fault public health authoirt haev nnothing to do with implemtation of directive and still they have to suffer conseuqnces

so the fairness comes from the perspecitve of the employer if you compare it to another private entity- that is 1 cirt agaisnt this case law - bc if you think about ratti what was basis argument for why we have vertical - it was the estoppel argument bc ms at fault for not impleetn it

the public health authority in marshall is not at fault it just doesnt implent a directive AND STILL CT PUSH THE UNDERTSANDING OF WHAT THE STATE IS FURTHER OUT IN MARSHALL = ACADEMIC CRIT OF THIS CASE

Question 5

Part VI.1: Broad definition of “state”- 2ND CASE? foster v british gas?

Answer 5

where ct showed us an extended understanding of what state means and this is foster v british gas- again if u look at handout = emination of state - vertical direct effect in handout box

Broad definition of “state” for the purposes of vertical direct effect

Case C-188/89, Foster v British Gas: - facts in foster similar to facts in marshall

Mrs. Foster was forced to retire by British Gas because she had reached the company’s retirement age for females (60) which was lower than the retirement age for men (65). UK legislation allowed this. British Gas was a nationalised industry with a monopoly of the gas-supply system in the UK. UK court asked the CJEU whether Mrs. Foster can rely on art. 5 Equal Treatment Directive.

could she rely on her right?

Question 6

Part VI.1: Broad definition of “state”- what did court say?

Answer 6

CJEU extended vertical direct effect from “state body” to “emanation of the state” - the body is STATE FOR PRUPOSE OF DIRECT EFFECT IF THESE CONDITIONS ARE MET - it needs to provide public service- be under control of stae and have powers above those held by private parties- the so called foster test - remebr it

Foster test [20]: The body must
Provide a public service
Be under the control of the state
Have powers above those held by private bodies

remeber this test - so if u have problem q and bod is british gas - monoplosied national industry and u have to apply foster test to see if u can enforce ur right british gas- does british gas provide public service? yes running gas - is it under control of the state in our case? - if u play with the facts - back then it was nationalised - does it have powerrs above those held by private parties - is there something british gas employee can do that amazon employee cannot do

another arg if theres a gas leak in your house, they are allowed by stat to come into fix it - also meter readings have stat right to enter ur premises to check it , so u hace special powers which is why when case returned to uk courts the hol said that britsh gas FULFILLED FOSTER TEST

Question 7

-Part VI.1: Broad definition of “state”- question is what?

Answer 7

question is : why did uk cts check if met why not eu cts

On return of the case to the UK courts, the House of Lords held that British Gas fulfils the Foster test. Mrs. Foster could enforce art. 5 Equal Treatment Directive against British Gas.
British Gas = emanation of the state  Vertical direct effect

it is bc court of justice ONLY INTERPRETS EU LAW AND THE NATIONAL CTS APPLY EU LAW (PRELIM REF) national ct has quesiton e.g when is body a satet - the application of eu law to facts of case, is only done b national ct which is why it was uk cts applying foster critieria to the case - so british case was emination of state- and therefore we had case of vertical directeeffect- = improtant bc were in this box

again if u think about reasoning for vertical direct effect the ms being at fault it doesnt work for britsh gas- britsh gas does not implemetn directives tehy have nothin to do with it - this why u can be very critical of this case law- extends notion of state - adn why does ct do it e.g BECAUSE WE DONT HAVE HORIZTAONL DIRECT EFFECT SO CT IS TRYING TO UNDERMINE NO HORIZTOANL DIRECT EFFECT OF DIRECTIVES - nad 1 way is just have very wide notion of what state is and means! - this case law is very controversial

Question 8

Part VI.1: Broad definition of “state”- what about update?

Answer 8

Update: CJEU clarified (and expanded?) the Foster test in Case C-413/15, Farrell- was referreend to ct jeu in 2015 but it takes time for cjeu to recite cases and decision as only made 3 ywars after and hear ct clarfied fostered test and again extended it so remebr in foster had 3 critiera, public service and here it aid u have si

Read: EU Law Analysis Blog

Question 9

Part VI.1: Broad definition of “state”- what about emanations of teh state?

Answer 9

Emanations of the state “can be distinguished from individuals and must be treated as comparable to the State, either because they are legal persons governed by public law that are part of the State in the broad sense, or because they are subject to the authority or control of a public body, or because they have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, such special powers.” [34]

COMPARABLE SUFFICENT FOR DIREDCT EFFECT- EITHER BC LEGAL PERSON GOVERNED BY PUBLIC LAW / ALTERNATIVE 2 BODY IS SUBJECT TO AUTH / CONTROL OF PUBLIC BODY AND LAST ONE THEY HAVE BEEN REQ BY SUCH BODY TO PERFORM TASK IN PUBLIC INTEREST AND BEEN GFIVEN FOR PURPOSE SUCH SPECIAL PURPOSE

SO IF LOK AT 1ST ONE - PUBLIC INTEREST AND GIVEN SPECIAL PWOERS - SO IF U LOOK AT LAST 1 - TASK AND PI AND SPECIAL POWERS THAT IS BASICALLY PUBLIC SERVERS AND SPECIAL PWOERS - THIS SECOND ONE ACC NOT MENTIONED
WHICH IS HWY I SAID WHICH WHY I SAID THE CTS SEEMS TO HAVE XTENDED FOSTER TEST EVEN FURTHER SO IF U HAVE PROBLEM Q - APPLY FOSTER TEST BUT IF ANY OF CRITERIA ON FOST NOT MET - THIS MAY GIV U AND EXTENSION OF IT

FOSTER AND MARASHLL- CT EXTENDED IDEA OF WHAT STATE IS AND MADE IT WIDE- THIS IS CONTROVERSILA DN REASON WHY WE HAVE IT - BC CT SAID - WE DONT HAVE HORITZONTALDIRECT EFFECT OF DIRECTIVES EFFECT AND EXTENDING THIS AREA HERE IS WAY TO UNDERMINE THIS BC IT SHRINKS- SO THAT WAS ALTERNATIVE 1

Question 10

Part VI: Alternatives to the rule that directives do not have horizontal direct effect- what is alternative 2?

Answer 10

Part VI: Alternatives to the rule that directives do not have horizontal direct effect

-2. Direct effect of general principles of EU law concretised in a directive

Question 11

Part VI.2: Direct effect of general principles of EU lawfacts in mangold?- key case

Answer 11

2. Direct effect of general principles of EU law concretised in a directive

Mr. Mangold (56 years old) was employed by a ( private employer. He had a clause in his contract which, in accordance with German law, made it easier to end his employment relationship compared to younger workers. The Equal Treatment Directive prohibits this age discrimination, but the implementation period of the Directive had not expired at the time of the case.

PRICATE DIFFERENT FROM MARSHALL , FROM FOSTER AND BRITISH GAS AND THERE WAS BASICALLY DISCRIM ON GROUNDS OF AGE AND PROBLEM WAS THE EQUAL TREATMENET DRIECTIVE THAT PROHIB - wasnt yet in effect the implementation period had not expire at time of case

Mangold’s EU right = not to be discriminated against on grounds of age - THIS IS HIS RIGHT - CANT HE DO THAT
1. BC ITS A DIRECTIVE AND WE DONT HAVE HORITZONTL DIRECT EFFECT OF DIRECTIVE, EVEN WE HADF , tehres noather reason= implementaion period - 2 years and ct got around these 2 reasons in mangold

Question 12

Part VI.2: Direct effect of general principles of EU law: what was held in mangold?

Answer 12

HELD: Dispute between two private parties: Horizontal direct effect of directive

Indirect effect? Here not possible according to German court

What did the Court do next?

It developed the principle of non-discrimination on grounds of age = general principle of EU law [75]
Directive does not establish this principle, but only lays down a framework for its application [74] - very controviersial ct said in mangold

general pricniples= [priamry eu law- no implemntation is needed- os there is no transposition period - and court said - directive does not establish pricniple of course it doesnt bc principcile is primary eu law but only lies down framweork for its sapplication, noone know what that actually means- and as result - germany ct has to dissaplply -= supremacy - thats what ct said - but why is this reasoning dodogy

Question 13

Part VI.2: Direct effect of general principles of EU law : result of mangold?

Answer 13

Result: German court has to disapply any German law contrary to that general principle [77-78]

Question 14

Part VI.2: Direct effect of general principles of EU law: why courts reasoning dodgy?

Answer 14

Why is the Court’s reasoning dodgy?
Transposition deadline of Directive had not expired when discrimination occurred
Court: doesn’t matter [76]
Effect: Use of general principle got around the Ratti criterion!

reason is dodgy bc transpotion deadline had not expired, and ct said that doesnt matter bc im not relying on directive, im relying on general pircniple that i just inveneted so - it got around the ratti criterion by inventing and relyng on principle

Question 15

Part VI.2: Direct effect of general principles of EU law : what about mangold ?

Answer 15

Mangold is NOT a case of horizontal direct effect of directives

im not relying on directive, im relying on general p - so does that mean gerneal principle

Does that mean that the general principle of non-discrimination on grounds of age is capable of having horizontal direct effect? Unclear in Mangold…

• = unclear in mangold bc ct didnt say that specifically and we need to look at next clse to undertsand it

CT WAS CLEAR THIS IS NOT CASE OF HORIZONTAL DIRECT EFFECT OF DIRECTIVE, BUT IT WASNT CLEAR ABOUT, WHAT IS IT THEN

Question 16

Part VI.2: Direct effect of general principles of EU law -what is the next case?

Answer 16

… clarified in Case C-555/07, Kücükdeveci [51]

Question 17

Part VI.2: Direct effect of general principles of EU law: take home message?

Answer 17

General principle of non-discrimination on grounds of age “as given expression” in the Equal Treatment Directive = capable of having horizontal direct effect, even before transposition deadline for directive has expired

• AS GIVIN EXPRESSEN IS IMPORTNAT - is capable even before r.a.w IMPORTANT - this why said here we have the gernal principle concratisced in a directive. the general principle alone wont do - the combinatio itself is what the ct relied on - this case has been

Question 18

Part VI.2: Direct effect of general principles of EU law - what about kuk critiscm?

Answer 18

ct has been heavily critisiced - said ct was trying to simply create grounds of age - and substance of obligation was found in directive- so directive is clearly more specific - existence of pricniple v contro - what is unclear is when privison and directive gives expression - when is that level reached? - so u end up with very uncleatr and messy scenario after mangold so no legal certainity

Criticism:
Substance of obligation was found in terms of directive
Existence of such a general principle is controversial
Unclear when provisions in a directive give expression to a general principle
Law is unclear and messy  No legal certainty

CT WAS TRYING TO GET AROUND HOW THERE WAS NO HORIZONTAL DIRECT EFFECT OF DIRECTIVES- SO A INVENT A GENERAL PRICNIPLE AND THEN I SAY WHCIH GETS ME AROUND TRASNPOTITON PERIOS THEN I SAY THE COMBINATION OF BOTH - GENRAL PRINCIPLE AND DIRECTIVE - IS WHAT U CAN RELY ON IN NATIONAL COURTS - WHOCH IS WHY ON THE HANDOUT WHEN U SEE THIS HERE - gernal p eu law horizental direct effect there is blue and grey but half box blue and greay means blue primary eu law and grreay is directive - u need the combination of both

Has the ct ever extended mangold to another general pricniple e.g gernal principe not to be discrim agaisngt based on gender= no never - tell us - ct realisies that that is not good case but has stuck with - which why ct probsnever extended genral p csse alw to others in directives - VERY COMPLEX CASE LAW WHICH DOESNT MAKE SENSE BUT WE HAVE TO LIVE WITH IT CT CREATED THAT CASE LAW ITSELF

Question 19

Part VI: Alternatives to the rule that directives do not have horizontal direct effect: what is easier territory ?

Answer 19

3. Principle of indirect effect

Question 20

Part VI.3: Indirect effect of Directives-what does it mean?

Answer 20

Part VI.3: Indirect effect of Directives

Indirect effect = doctrine of consistent interpretation = interpretative obligation - not in TEXT OF TREATIES it is case law not explciitly mentioned in traties and its

Origin: CJEU case law (Case 14/83, von Colson); not explicitly mentioned in the Treaties

Question 21

Part VI.3: Indirect effect of Directives- whats the defintion?

Answer 21

Definition:

Duty of a national court to interpret the national law, as far as possible, in the light of an applicable directive Case C-212/04, Adeneler [108]

ASTON LAW STUDENT A - UBER

going to look at what is as far as possible

Question 22

Part VI.3: Indirect effect of Directives - what can u see ?

Answer 22

The doctrine explained: In situations where there is no direct effect, the applicable national law must still be interpreted in harmony with an applicable directive -

THAT PROTECTS UR RIGHTS IF THAT IS POSSIBLE - SO TALKING ABOUT UNIMPLEEMNTED OR INCORRECTLY IMPLEMENTED DIRECTIVES -SO ENGLISH LAW IN A GOOD CASE - ENGLISH CT HAS TO IMPLEMENT IT INTO ENGLISH LAW AND ENGLISH LAW SAYS X PLUS WHAT FR VARIOUS REASONS NOW Q CAN ENGLISH CT INTERPRET X PLUS 1 AS BEING X = ABSTRACT SCENARIO - LOOK AT VIEW EXAMPLES IN A SEC - IF THAT IS POSSIBLE THEN UR RIGHT IS PROTECTED AND IN THAT SCENARIO THE DIRECTIVE INDIRECTLY INFLUECES PUTCOME OF CASE- WHICH IS WHY ITS CALLED INDIRECT EFFECT- YOU DONT RELY ON DIRECTIVE ITSELF- U GET UR RIGHT OUT OF NATIONAL LAW BUT U INTERPRET NATIONAL LAW IN THE LIGHT OF THE DIRECTIVE- SO INDIRECTLY THE DIRECTIVE INFLUENCES OUTCOME OF CASE

Method to protect individual’s rights if there is no direct effect
Directive indirectly influences the outcome of the case

[Similar doctrine in UK law: rights-consistent interpretation under s. 3(1) Human Rights Act 1998] similar PROCEDURE HERE AS ABOVE - THIS AS FAR AS POSSIBLE GOES FURTHER THAN WHAT IS BEYOND NORMAL STAT INTERPRETATION IN ENGLAND - IT IS QUITE POWERFUL

Advantage of indirect effect for claimants: the interpretative obligation applies even if the provision in a directive does not meet the van Gend criteria (e.g. if provision is not clear enough)

r.a.w - so even if that scenario - the ct still has to apply this obligation here!!!

on hand out U CAN SEE THE RIGHT OF DIRECT EFFECT COMES FROM EU LAW - RIGHT X COMES FROM EU LAW - INDIRECT EFFECT WHERE DOES RIGHT COME FROM - IT COMES FROM INTERNATIONAL LAW - IN A SITUATION ON INDRIECT EFFECT U RELY ON NATIONAL LAW AND U WANT TO INTERP NATIOANL LAW IN LIGHT OF DIRECTIVE - KEY DIFFERENCE- DIRECT EFFECT U ERELY DIRECTLY ON UR EU RIGHT - INDIRECT EFFECT THE RIGHT U RELY ON COMES FROM NATIONAL LAW- GOING TO APPLY THIS IN A BIT

SO CAN COURT DO THIS - AND THAT IS ABOUT STRENGHT - the pwoerful application of doctrine

Question 23

Part VI.3: Principle of indirect effect: A powerful doctrine – Case C-106/89, Marleasing?

Answer 23

Litigation was between two private parties. The case arose out of a conflict between the Spanish Civil Code and a company law directive which was unimplemented in Spain. Can the Spanish Civil code be interpreted in conformity with the directive?

WE HAD NATIONAL LAW AND EU LAW AND IT WAS CLEARLY A CASE BTW INDIVIDSM

Q WAS COULD U INTERPRET

Question 24

Part VI.3: Principle of indirect effect-HELD:

Answer 24

The doctrine applies to national legislation that is adopted before or after the directive [8] THAT MEANS IF U HAVE ENLISH LAW MADE IN 1958 AND DIRECTIVE FROM 2014 THE OBLIGTION APPLIES- EVEN THOUGH PARL HAD NO IDEA ABOUT EU - EVEN IN THAT SCENARIO U HAVE TO APPLY OBLIGAATIION IN THAT CASE

-CJEU held that the Spanish court was precluded from interpreting national law in a way which did not comply with the directive [9, 13] - PRECLUDING - SOUNDS LIKE ACTUALLY NO LIMITS TO THE INTERPRETAIVE OBLIGATION - IF U READ ACADEMIC LIT THIS HELP ANALYUSES IT- SOUNDS LIKE LIMITLESS OBLIGATION - IF IT IS LIMITLESS OBLIGATION - WOULDNT MATTER ANYMORE BC IF U HAVE ANY KIND OF NATIONAL LAW ULL BE ABLE TO GET AROUND THIS- SO PEOPLE THOUGHT AFTER THIS CASE THIS IS ACC WHAT HAPPENED
It seems that the CJEU does not recognise any limitations to the interpretative obligation

Question 25

Part VI.3: Principle of indirect effect-TAKE HOME

Answer 25

Unimplemented directive can be relied on to influence the interpretation of national law in a case between individuals- IN HORIZONTAL SCENARIO AND DUTY APPLIES

Duty applies to all national law, not just national legislation designed to implement a directive

E.G ENLGISH LAW 1958 EVEN APPLIS TO THAT LAW

-National court must do “whatever lies within its jurisdiction” to achieve a result that complies with the directive via consistent interpretation (Case C-397/01, Pfeiffer [118])
= POWERFUL EXPRESSION OF THE OBLIGATION

Question 26

Part VI.3: Principle of indirect effect what does the doctrine require?

Answer 26

The doctrine requires room for interpretation, but how far does “as far as possible” go, and who decides that (CJEU or national court)?
Later CJEU case law: national court decides

SO WHAT WE KNOW IT IS CALLED INTERP ITS NOT CALLED AMMENDAMTN OF LEG ONLY PARL CAN AMMEND SO WE NEED SOME ROOM FOR INTERP - BUT HOW FAR DOES HPW FAR AS POSSIBLE GO R.A.W

IS NATIONAL CT OR CT OF JUSTICE- CT CLARFIED = TASK OF NATIONAL CTS TO DECIDE WHAT CAN BE DONE UNDER DOCTRINE

Question 27

Part VI.3: Principle of indirect effect- what about danger?

Answer 27

Danger: adventurous interpretations undermine legal certainty

NATIONAL CTS FEEL PRESURRIED BY THIS DOCTRINE AND THEN PUSHES THEM TO INTERP X PLUS 1 AS MEANING X= UDNERMINS EXLCUSION OF DIRECT EFFECTIVE OF DIRECTIVES IF UDO ADVERNTOUS INTERP OF EXISTING LAW = X LEGAL CERT

SO WHAT U READ STAT BOOK AS CITIZEN HOW ARE U SUPPOSED TO KNOW U CAN GET X OUT OF IT AND OBVS CAN LEAD HORIZONTAL

Question 28

Part VI.3: Principle of indirect effect - what about critiscm

Answer 28

Criticism: practical effect of the doctrine is indistinguishable from ascribing to directive ‘horizontal direct effect’- HORIZONTAL
Possible effect of doctrine: Imposition of civil liability on private party, which would not otherwise have existed (e.g. Case C-456/98, Centrosteel)

• WHAT IF ENGLISH LAW OF 1958 SAID BLACK AND DIRECTIVE SAYS WHITE CAN U INTERPRET BLACK AS MEANING WHITE ? - PROBS DEPEND ON CONTEXT MY INTITUION WOULD SAY TOO FAR OR WHAT IF SAYS CATS AND DIRECTIVE SAYS DOGS CAN A DOG BE CAT? U CANT MAKE THAT HAPPEN BY MEANS OF INTERP - IF PARL POSSIBLY BY AMMEDNANT

SO THESE ARE 2 CONTROVERSIAL CASS AND SHOWS HOW ADVENTOURS AND FAR U CAN STRRETCH IT

Question 29

Part VI.3: Principle of indirect effect: WHAT ABOUT LIMITS

Answer 29

CJEU clarified its case law after Marleasing- CJEU FOUND WAY BACK TO REASON AND CREATED LIMITS FOR DOCTRINE OF DIRECT EFFECGT MEANING U CANT JUST DO EVERYTHING UNDER INTERP

• Limits of indirect effect
  1. Consistent interpretation not possible if there is no national law to interpret - IF NOTHINF THWER U CANT INTEREPT
  2. The specific consistent interpretation must be possible under national legal methods (Case C-397/01, Pfeiffer)- E.G WE LOOK AT ENGLISH PRBLEM LAW Q SO U NEED TO ASSESS AS POSSIBLE AS ENLGISH LAWYER AND THEY COULD BE DIFFERNT BUT THATS WHAT CT SAYING -M IN REGARD NATIONAL LEGAL METHODS
• If (-), the contra legem limit is reached
• E.g. for the UK: Changing ‘black’ into ‘white’ or changing ‘the opposite sex’ into ‘the same sex’ not possible

Question 30

Part VI.3: Principle of indirect effect - WHAT ABOUT LIMTIS OF INDRIECT EFFECT 3-4?

Answer 30

Limits of indirect effect [contd.]

3.Directive cannot of itself and independently of a law adopted for its implementation determine or aggravate liability in criminal law of persons who act in contravention of the provisions of the directive (Case 80/86, Kolpinghuis Nijmegen)- ASSUME UK ROBB ACT 1987 SAYS IF U COMMIT ROBB HAV TO GO JAIL 1- YRS- WHAT IF DIRECTIE SAYS THE MIUM TERMS IS 15 YEARS CAN U READ 10YRS AS MEANING 15 YEARS- IT THAT CASE NO BC AGGRATVIATE LIABILITY IN CRIMINAL LAW - CRIMINAL LAW IS SPECIAL

4. Consistent interpretation is limited by general principles of EU law like legal certainty (Case C-268/06, Impact)
   - LEGAL CERTIANIRTTY MEANS IF U HAVE LOOK AT NATIONAL LAW HOW ON EARTH U GOING TO KNOW CT CAN DO COULD DO X WHEN U END UP IN COURT - IF U READ ACT IN STAT BOOK HOW U GONNA KNOW IT MEANS WHITE

LEGAL CERTIN PRINCIPLE AHRDLY MENTIONED IN EU LAW

Question 31

Part VI.3: Principle of indirect effect - look in context - ?

Answer 31

• If there is no direct effect …and… bc uber private idenity - nodirect of directives - so is indirect possible
• If the limits of indirect effect are exceeded … and …- assume excveedd then u look other alternatives - 1 - 5 - so last way out MS for breach of eu law
• No other alternatives to the lack of ‘horizontal direct effect’ of directives appear to apply … then …
• Consider: MS liability for breach of EU law [TP2, Topic 8]- in whihc case aston law student would sue uk for indcoreect implemention of the diretive = another action that invloves money and ct again - THINKIN WANT U TO HAVE FOR PROBLEM Q

Question 32

LOOK AT IN OWN TIME?

Answer 32

Activity: Example problem question - WHENEEVER IT MENTIOSN ANTIONAL LAW = INDRIECT EFFECT

THINK ABOUT THE HANDOUT FOR DIRECT EFFECT’
START AT TOP

Question 33

Part VI: Alternatives to the rule that directives do not have horizontal direct effect - what about pricniple of incidental effeect?

Answer 33

4. Principle of incidental effect

super duper complex- it doesnt make sense at all - it raises more q than answers - but we have to lvie with it- its not very helpful case law - want u to udnertsand why it doesnt make sense- why it is so complex - 2 cases

Question 34

Part VI.4 Principle of incidental effect

Case C-443/98, Unilever ?

Answer 34

EASIER TO UNDERSTAND- ITS ABOUT OLVIVE OIL

FACTS: Contract between Unilever + Central Food. Contract required Unilever to deliver olive oil labelled in accordance with Italian law. Central Food refused to accept oil as it did not comply with Italian labelling requirements. Unilever argued in the Italian courts that (a) the labelling complied with EU directive, (b) the incompatible Italian labelling law should not apply and (c), therefore, the supplied olive oil complies with the applicable Italian law.

LABELLING WASNT COmplatible

SO unilvelr argued- it complied with eu directive - the incompatible labelling law should nit apply- and theroefre olive opil -complies wiuth the applicable itsalian law- they wanted to simply get tird of the italian labelling requirement -

Background: EU directive = technical specification directive: prohibited Italy to regulate the labelling of olive oil -

-PROHIBITED R.A.W

Question 35

Part VI.4 Principle of incidental effect- UNI LEVER CONT

Answer 35

Case C-443/98, Unilever [contd.]

Can Unilever rely on the directive in this horizontal scenario?- WE HAVE HORTIZONTAL SCENARIO CAN UNILEVER RELY ON DIRECTIVE- relied on directive not to get right but to GET ITALIAN LABELLING LAW DISAPPLIED

Unilever relied on Directive in order to have national law disapplied (supremacy).

- Effect: imposing contractual obligation on Central Food to accept the olive oil = negative consequences for Central Food

BUT: the obligation imposed on Central Food did not stem from EU directive itself(!), but from the contract(!)
Directive only regulated technical specification of goods

WHERE DOES OBLIGATION ITSELF COME FROM? OBLIGATION CAMER FROM CONTRACT AND CONTRACT SAID DELIVER OLIVE OIL IN COMPLAINCE WITH ITALIAN KLAW- KEY BIT IS THIS ARG ‘APPLICABLE ITALIAN KLAW’; IF I GET RID OF ITALIAN LABELLING LAW THE LEFT OVER APPLIABLE ITALIAN LAW IS 1 WIHTOUT LABELLING REQ AND THE OLIVE OIL UN DELIEVERD THEN COMPLIES WITH THE APPLIACBLE ITALIAN LAW - OBLIGATION COMES FROM CONTRACT

Question 36

Part VI.4 Principle of incidental effect-TAKE HOME?

Answer 36

…so the Court says: NOT a case of horizontal direct effect of directives

THATS WHY

AND THIS IS CONFUSING

Question 37

Part VI.4 Principle of incidental effect-CASE UNILEVER CONTINUED

Answer 37

Case C-443/98, Unilever [contd.]

Utterly confusing. How is this not a case of horizontal direct effect of directives?
Court distinguished Marshall + Dori:

HOWS IS NOT CASE OF DIRECT EFFECT - the directive create netiher right next slide

Question 38

Part VI.4 Principle of incidental effect-WHAT WAS HELD:

Answer 38

EU technical specification directive creates neither rights nor obligations for individuals [51]
No EU right, so question of direct effect does not arise- WHIH IS WHY BUT RIGHT IN EU LAW FIRST- STEP NUMBER ESTABLISH A RIGHT IN EU LAW- IF U DONT HAVE EU RIGHT THE Q OF DIRECT EFFECT DOES NOT ARISE AND THAT WHAT CT SAID IN UNILEVER

Court distinguished Marshall + Dori:

-Dori does not apply where a technical specification Directive renders a technical regulation in a MS that breaches the EU directive inapplicable [50]
This is supremacy reasoning, not direct effect.- because tSUPREMACY NOT DIRECT EFFECT

Question 39

Part VI.4 Principle of incidental effect-UNILEVER RELIES ON

Answer 39

Unilever relies on directive only to disapply national law (supremacy, “exclusionary effect”), but not to derive an EU right from the directive (direct effect, “substitution effect”)- CT SAID THIS SUPREMACY - USUALLY EXLCUSIONARYEFFECT BUT U CANNOT DERIVE AN EU RIGHT FROM DIRECTIVE- YEH THATS DIRECT EFFECT IF HAVE EU RIGHT

Does that mean that direct effect is not a precondition for supremacy of EU law?
= controverisal (see academic debate, slide 5 above)

CT USE SUPREMACY REASONING WITHOUT HAVING DIRECT EFFECT, AND THAT IS CONTROVERSIAL WHETHER THAT ACUTALLY POSSI AND THAT RELATES TO RELATIOSN BTW SUPREMACY AND DIRECT EFFECT- WHICH IS ON SLIDE NO.5 VER BEGINING OF LAST WEEKS LECTURE

U NEED DIRECT EEFFECT TO GET TO SUPREMACY OF EU LAW THAT IS 1 WAY TO SEE IT - THERES ONE PROB WITH THAT VIEW AND THAT INCIDENT EFFECT CASE LAW IT DOESNT WORK WITH THAT REASONING - TRYING TO KAKE SEN DO IT BUT WE HAVE NO IDEA

STOPPED DOING OR OTHER JUDGES CTOJ NOT CONVIVNED OF THIS DOCTRINE BC DOESNT MAKE SENSE

Limitation:
Incidental effect only applies when directive does neither create rights nor obligations for individuals = narrow category

CLEAR LIMTIATION- ONLY APPLIES WHEN DIRECTIVE NETIEHR CREATE RIGHT OR OBL FOR INDIVD= NARROW CAT - MOST DIRECTIVES CLEARLY EU WORK RIGHTS - THEYA CTUALLY CREATE OBL OR RIGHTS

TELLS US ATLEAST IMPACT IS NOT VERY HIGH AS APPLIES TO VERY SPECIFIC SET OF FACTS - ONE OF THE MOST DIFFICULT DOCTRINES TO UDNERSGTAND AND WE HAVE TO LIVE WITH IT AND MAKE SENSE OF IT EVEN THOUGH VERY DIFFICULT

Question 40

Part VI.4 Principle of incidental effect-DEFINITION OF INCIDENTAL EFFECT?

Answer 40

Definition of incidental effect::

An individual can rely on a directive in an action against another individual, and this can affect the outcome of the case even though the directive does not directly impose an obligation on the other party to the proceedings. - FLUFFY

Incidental effect is distinct from horizontal direct effect of directives because the directive does not of itself impose obligations on individuals.

Question 41

Part VI.4 Principle of incidental effect-CRITSICM BY JACOBS?

Answer 41

Criticism (AG Jacobs, Unilever, paras. 100-101): - HE DIDNT CONVINCE COURT ABOUT IT

Injustice: CJEU ruling means that individual (Central Food) looses not because of its own failure to comply with EU law, but because of a Member State’s behaviour.

Question 42

Part VI.4 Principle of incidental effect-CRIT 2?

Answer 42

Legal uncertainty: In order to avoid difficulties in contractual relations, an individual trader would have to (a) be aware of the existence of the EU technical directive and (b) establish with certainty whether or not the Member State in question had complied with all the requirements of the directive.

Question 43

Part VI.4 Principle of incidental effect–Should directives have horizontal direct effect? – the debate

Answer 43

CJEU: giving directives horizontal direct effect would create legal uncertainty (Case C-201/02, Wells [56])
BUT: legal uncertainty and complexity is created by the 4 alternatives to this rule [AG Sharpston] if we

AFTER ALL THESE ALTERNATIVE BRINGS BE BACK YO DEBATE - AND HOW COMPLEX THEY ARE AND HOW THEY CAN CIRCUMVENT RULE WE DONT HAVE HORUITZONTAL DIRECT EFFECT OF DIRECTIVES- SHOULD WE SIMPLY SAY AND ADMIT IT IS BETTER FOR DIRECTIVES ALSO TO BE CAPABLE OF HAVING HORIZONTAL DIRECT EFFECTY - CT SAID NO IT WOULD CREATE UNCERTSINITY

WHAT CREATE UNCERTAINTY = 4 OR 5 ALTERNATIVE SAND COMPLEXITY OF THEM

SEE DOWN HERE IN ONGOIGN DEBATE IN THESE CASES

Ongoing debate:
In favour of horizontal direct effect of directives, e.g. AG Sharpston, Case C-413/15, Farrell; AG Jacobs, Case C-316/93, Vaneetveld; AG Lenz, Case C-91/92, Dori

MY CT FEELING REASON WHY CT SAYS IT - ALTERNATIVES SUPER MESSY AND LAW NOT CERTAIN -0ADMITTING WE HAVE HORIZONTAL DIRECT WOULD BE WAY EASIER - WHY ARE THEY NOT DOING IT - WHAT WOULD HAPEPN IS MS CTS WOULDNT BE HAPPY ABOUT IT- E.G FRENCH AND GERMAN CTS CT IS DEPENDANT ON SUPPORT IF THEY DOTN DOLLWO CT THATS IT

WHEN VERTICAL EFFECT - FOR EFFECIVENSS REASON NATIONAL CTS SAID UR ARGUMNT NOT CONVING AND CT CHANGED REASONING AND THAT ESTOPELL REASONING DOESNT WORK FOR HORIZTONL - AN INDIVID IS NOT AT FAULT SO THAT IS MAIN REASON WHY CT DOESNT CHANGE ITS CASE LAW BC HIGH LIKELY NATIONAL COURTS WOULDNT FOLLOW CT OF JUSTICE COS WOULD SAY UR REASONING IS NOT CONVICNG

BUT CJEU: The rule stands! No horizontal direct effect of directives!

Question 44

Summary: Horizontal effects of EU law?

Answer 44

• Horizontal direct effect of Treaty provisions + Regulations [Not Directives!]
• Indirect effect of directives [and all other EU law]
• Incidental effect of directives [Unilever]
• Horizontal direct effect of general principle combined with a directive [Mangold]

Question 45

Summary: Horizontal effects of EU law?

Answer 45

• Horizontal direct effect of Treaty provisions + Regulations [Not Directives!]
• Indirect effect of directives [and all other EU law]
• Incidental effect of directives [Unilever]
• Horizontal direct effect of general principle combined with a directive [Mangold]

why important? - IF YOU HAVE PRB Q AND IF U HAVE HORIZONTAL SCENARIO LIKE ASTON A AND UBER THINK OF ALL OF THESE OPTIONS TO SEE WHETHER U DONT MISS ANYTHING-NEED TO THINK DO WE HAVE HORIZONTAL - IF U AHVE DRECTIVE U KNOW IT DOESNT EXIST- IS IDNRIECT EFFECT POSS OR MAYB THERES INCIDENTAL - IF U HAVE FITH COMING FROM DIRECTIVE THERE IS NO INCIDENTAL EFFECT

OR MAYBE THERES SIT OF HORIZONTAL DIRECT OF GENRAP PRICNIPL COMBINED IWHT DIRECTIVE- WANT TO THINK ABOUT IF CASE OF DISCRIMINATION IF DONT HAVE THAT U DONT HAVE TO ENAGE WITH IT - SO U CAN SAY - TODAY IS WE BASICALLY SPENT WHOLE LECTURE ON THE ALTERNATIVE WHICH TELLS U HOW COMPLEX, MESSY AND RELEVANT IT IS FOR THE EXAM

Question 46

learning objectives

Answer 46

• Explain the nature and function of direct effect
• Critically assess the legal basis of the doctrine
• Understand the application of direct effect to different kinds of EU law
• Critically assess the alternatives to horizontal direct effect of directives
• Apply direct effect to a hypothetical factual situation (problem questions)