Direct Effect - Cases

Question 1

Van Gend en Loos [1963]

Answer 1

• established direct effect and touched on sovereignty
• dutch 8% import duty of — into Netherlands
• questioned if conflicted with EU law
• Belgium argued the Courts’ ruling about the question would also not have binding effect
• Court held that positive legislation is not required for EU law to have effect in M/S
• “these rights arise not only where they are expressly granted by the Treaty”
• legislation must be sufficiently precise, unconditional and unambiguous

Question 2

Angonese

Answer 2

• Horizontal DE of regulations
• Angonese was denied a job at the bank due to regional legislation requiring a specific language certificate to show Italian and German fluency
• He was fluent but lacked certificate
• Brought action against the Bank
• Successful based on regulation for FMoW

Question 3

Defrenne v Sabena [1976]

Answer 3

• made distinction between horizontal and vertical DE
• discrimination in pay between male steward and female air-hostess - she wanted to sue under Art 119
• several MS had not implemented Art 119 EEC during transitional period
• she was successful
• HELD: Treaty articles that are sufficiently clear and precise and unconditional = capable of horizontal AND vertical DE

Question 4

Faccini Dori [1994]

Answer 4

• NO HORIZONTAL DE FOR DIRECTIVES
• she was sold an English Language course she did not want
• By Italian law she was bound to accept it
• she tried to rely on EU law that allowed for cancellation within 7 days if made outside a business contract
• Directive had not yet been implemented, and not DE so could not rely on DE

Question 5

Van Duyn v Home Office [1974]

Answer 5

• set out criteria for DE of directives as needing to be unconditional and holding legal certainty
• Van Duyn was going to be secretary for ‘Church of Scientology’, and was banned from entering UK since Scientology was regarded as harmful for society by UK
• she pleaded to ECJ
• UK had not implemented the relevant directive and were seeking to refuse her entry based on its own wrongdoing
• HELD: Directives have vertical DE ONLY

Question 6

Ratti [1979]

Answer 6

• Directives are only DE after transposition deadline
• Ratti’s firm decided to package solvents according to 2 Directives that had not been implemented into Italy (Italy had a different law)
• Ratti was prosecuted for not complying with Italian law
• deadline for first directive was over
• once deadline for directive expires = DE, therefore first directive was already effective

Question 7

Von Colson [1984]

Answer 7

• INDIRECT EFFECT
• 2 female social-workers wanted to work in male prison and denied in favour for 2 less-qualified men
• they brought action based on directive
• INDIRECT EFFECT = national courts should interpret national law within the original purpose of the directive
• here, interpretation was authorised by Art 5 of the Treaty
• therefore action based on DE did not succeed

Question 8

Marshall [1986]

Answer 8

• broad definition of the “state” considered
• Directives have no horizontal DE BUT “Health Authority” was considered as being part of state therefore could use vertical DE

Question 9

Foster v British Gas [1990]

Answer 9

• similar age/gender discrimination as Marshall
• “organisations or bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable between individuals”

Question 10

Marleasing [1990]

Answer 10

• Spain failed to implement a directive
• would applicant rely on it despite being unimplemented and conflicting national law
• HELD: supremacy of directive > national law that came after
• ‘national courts must utilise interpretation as far as possible, in the light of the wording and purpose of the Directive’

Question 11

Centrosteel [2000]

Answer 11

• indirect effect
• obligation to conform interpretation can extent to situations in which results in imposition of civil liability on an individual which would not otherwise have been imposed

Question 12

Harz [1983]

Answer 12

• IDE
• defendant was a private employer and tried to claim for horizontal DE
• the court looked at the effect it would have on national law if it was effective, and saw that 4(3) TFEU (good faith) should be taken into account
• this would require all authorities of member states to comply with community law obligations
• ECJ - “it is for the national court to interpret and apply the legislation adopted for the implementation of a directive, in conformity with Union law, in so far as it is given discretion under national law

Question 13

Harz [1983]

Answer 13

• IDE
• defendant was a private employer and tried to claim for horizontal DE
• the court looked at the effect it would have on national law if it was effective, and saw that 4(3) TFEU (good faith) should be taken into account
• this would require all authorities of member states to comply with community law obligations
• ECJ - “it is for the national court to interpret and apply the legislation adopted for the implementation of a directive, in conformity with Union law, in so far as it is given discretion under national law

Question 14

Wagner Miret [1992]

Answer 14

• IDE
• where not practically possible to interpret contradictory national law in conformity with EU law, it is the responsibility of the member state to compensate any loss the individual has suffered by not fulfilling EU law

Question 15

Webb v EMO Air Cargo (UK)

Answer 15

• confirmed Marleasing principle in English courts
• employee was sacked because she was pregnant and there was no express UK legislation protecting this
• House of Lords interpreted UK legislation (Sexual Discrimination Act 1975) to be consistent with Equal Treatment Directive 1976

Question 16

Pfeiffer

Answer 16

• ECJ said obligation was not restricted to the provisions themselves but extend to ‘national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive’