Direct, Indirect and Incidental Effect Flashcards
What is direct effect?
Broad Sense: Provisions of EU law can be invoked and relied upon by individuals in national courts, different to other types of international law
Narrow Sense: The capacity of a provision of EU law to confer rights on individuals
Which case provides the basis for direct effect?
Van Gend En Loos
Company faced increased custom charge when moving goods into Germany which went directly against provisions of EU law at the time that they should not be raised
* Held the Treaty was capable of direct effect
* The relevant article was one of which that was capable of direct effect.
* This is an example of vertical direct effect
What is the difference between vertical direct effect and horizontal direct effect?
Vertical: Dispute / issue arising between the state or a body of the state and a private individual
Horizontal: Dispute / issue between two private individuals
When will a treaty article have direct effect?
A treaty article will be accorded direct effect provided that it is sufficiently clear, precise and unconditional to be invoked by individuals (Reyners v Belgium)
What kind of direct effect will treaty articles and regulations have?
- Vertical direct effect, e.g. Van Gend En Loos, Viking Line
- Horizontal direct effect, e.g. Defrenne v Sabena, prohibition of discrimination on sex extends to all agreements including between individuals
What cases show us that directives have vertical direct effect?
Van Duyn: Usual effect of directives would be weakened if individuals were prevented from relying on it before the national court
Ratti: Member State committed a wrong by failing to implement a directive into national law, precluded by their failure to do so from refusing to recognise its binding effect (only after implementation period has passed can the directive have direct effect)
What did the case of Marshall say about horizontal direct effect of directives?
Marshall was dismissed by her employer after turning 60, eventhough the policy allowed men to retire at 65. Argued this to be against the equal treatment directive
* Binding nature of a directive only exists between the member state and those which it addresses
* Directive may not impose obligations on an individual
Reaffirmed in Faccini Dori
How has the court of justice developed a broad conception of the state to expand the scope of direct effect of directives?
Foster v British Gas: A body which has been made responsible for providing a public service under the control of the state and therefore has special powers for this purpose will be treated as the state
Farrell: Conditions in the Foster case are disjunctive not conjunctive. Held the MIBI which was responsible to ensure pay out for victims of motor accidents from uninsured drivers
* This was a task in the public interest and membership for insurers was complusory
* Essentially a private sector body doing some public sector functions
What is indirect effect?
- Idea of harmonious interpretation, stated to have treaty basis in Art 4(3) TEU, principle of co-operation
- Von Colson & Kamann: It is for the national court to intepret and apply legislation adopted for the implementation of the directive in conformity with the requirements of community law, in so far as it is given discretion to do so
- Dori v Receb: National court must interpret national law as far as possible in the light of the wording and purpose to achieve the result it has in view
What is the significance of the Marleasing case?
- Case was a horizontal situation
- Unimplemented directive did not provide lack of cause as a ground for nullity of a company, therefore Marleasing could not rely on this
- Argument of analogy to Spanish contract law could have been made (as this allowed lack of cause) had there not been relevant EU law
- Whether provisions were adopted before or after a directive the national court is required to interpret in light of the wording and purpose of the directive in order to achieve the result pursued by it
What happened in the Pfeffier case?
The claimants were employed by the German Red Cross. Argued that implementation methods of a directive were not compatible because it permitted situations of them working in excess of 48 hours due to the inclusion of ‘duty time’
* Court of Justice agreed with the claim and said the national legislation was not compatible with the directive
* Cited Von Colson and said the interpretive obligation extends to the whole body of law in the member state to ensure the directive is fully effective
* Must do whatever lies within its jurisdiction to ensure the maximum period of working time is not exceeded
* Red Cross had the opposite effect of a law that they thought they could rely on, shows uncertainty of this procedure
What happened in Smith v Meade?
Smith was injured whilst in the back of a van driven by Meade. Insurance policy did not cover for passengers in parts of vehicles not designed for sitting pursuant to Irish law, despite directives requiring compensation for injuries suffered
* Reiterated orthodoxy on directives having no horizontal direct effect
* Considered Von Colson, but concluded that in a dispute between private parties there is no obligation, solely on the basis of EU law, to disapply provisions of national law
* Distinguished from cases of incidental effect, directives in those cases concerned procedure and not substance (exclusionary, not substitutionary)
* Different outcome would exist if we allowed HDR of directives
What was said in the case of Thelen Technopark?
- ‘National Court is not required solely on the basis of EU law to disapply a provision of national law in a dispute between private parties’
- ‘Purpose of judgements is to lay down the duties of member states when they fail to fulfil their obligations, not to confer rights on individuals’
- ‘Party that has been harmed as a result of national law not being in conformity with EU law could rely on Francovich’
How does indirect effect operate in criminal law?
Kolpinghuis Nijmegen
Due to the principle of non-retroactivity, harmonious interpretation cannot result in the imposition or aggravation of an individual’s criminal liability
What is incidental effect through the logic of the ECJ?
- No substitution happens
- Some part of national law is invalid and disapplied
- No extra legal obligation is placed upon the private individual
- The bad parts of the law which are incompatible with EU law are drawn back and then we apply what is left of the national law
What were the facts of the CIA Security International v Signalson case?
- CIA claimed Signalson was engaging in unfair trading practices
- CIA said Signalson had libelled them by claiming CIA were marketing an alarm system not approved by the relevant Belgian authorities under national law
- CIA said they had not got this approval, but claimed this law failed to comply with EU law as they did not notify the Commission of it as they were required to do so
What was the Court of Justice’s ruling in the case of CIA Security?
- The directive lays down a precise obligation on member states to notify the Commission
- Failure to comply with this constitutes a procedural defect which renders the national rule inapplicable and unenforceable
- Aim of the directive was to protect the free movement of goods, the effectiveness of coomunity law would be much greater if the breach is interpreted as a substantial procedural defect
- No reference made to the fact that the case concerned two private individuals (horizontal situation)
What were the facts of Unilever Italia v Central Food?
- Central food order cosignment of olive oil from Unilever
- Central refused to pay when the delivery arrived as they said the oil was not labelled in the way Italian law required
- Argued the Italian law was incompatible with community law
- Italian government had notified the commission of the law but had adopted the law before the standstill period ended (i.e. before it was actually approved by the Commission)
- Did this constitute a procedural defect such that the law should be rendered unenforcable?
What was the opinion of AG Jacobs in Unilever?
No, the case should not be dealt with in the same way as CIA Security
* Dispute arises in civil proceedings of private parties in contract law and not in proceedings between competitors on the basis of national rule prohibiting unfair trading
* Italian law was correctly notified to the Commission, the infringement is not a failure to notify but a breach of standstill requirements
How did the Court of Justice rule in the case of Unilever?
Yes, the case could be decidied in the same way as CIA and the national law was to be disapplied
* Emphasised the particular aim of the directive and the rationale in CIA, national rules that breach it are unenforcable
* There is no reason to treat disputes between individuals relating to unfair competition as different from disputes involving contractual right obligations
* Directive created no individual rights and imposed no obligations on the individuals
How can general principles be used to get around the idea of no horizontal direct effect?
Idea of ‘exclusionary effect’
* Mangold: Concerned a directive of non-discrimination and equal treatment based on age. Court ruled that observance of this principle is not conditional upon transposition into national law. National court must ensure the full effectiveness of the principle and set aside any provision which conflicts
* Seda Kuckudeveci: National courts must disapply any piece of national law contrary to the principle of non-discrimination, even in horizontal situations
