EU Principles

Question 1

Treaty articles (and regulations) can have vertical direct effect

(First relevant case for EU law supremacy)

Answer 1

Van Gend [1963]

‘Van Gend Criteria’

1. Sufficiently clear and precise
2. Unconditional
3. No room for discretion in implementation

ECJ: “Community is a new legal order, by joining States have limited their sovereign rights”

Question 2

Directives can have vertical direct effect

Answer 2

Van Duyn [1974]

ECJ: if Directives not capable of direct effect, would weaken their useful effect

Van Gend criteria apply, at least in part – ECJ stated must be:

1. Clear/precise
2. Unconditional

Question 3

Directives can only have vertical direct effect if implementation date has passed

Answer 3

Ratti [1979]

Question 4

Treaty articles (and regulations) can have horizontal direct effect

Answer 4

Defrenne [1976]

Question 5

Directives can’t have horizontal direct effect, but vertical direct effect applies to state bodies in any capacity inc. employer

Answer 5

Marshall [1986]

Question 6

Directives can’t have horizontal direct effect, i.e. impose obligations on an individual

Answer 6

Faccini Dori [1994]

But there are other means:
> Indirect effect
> State liability

Question 7

ECJ cited legal certainty as reason Directives shouldn’t have horizontal direct effect

Answer 7

Wells [2004]

Question 8

????? Criteria for emanation of the state

Answer 8

Foster [1990]

Foster criteria:
> Public service condition
> Under control of state condition
> Special powers condition

Also summarised case law: state control OR special powers

Question 9

Case that solved confusion over Foster Criteria

Answer 9

Farrell [2017]

ECJ: wasn’t supposed to be a general test

> Clear public service + state body OR special powers is sufficient
Unclear whether satisfying a single condition is sufficient

Question 10

Indirect Effect – ‘?????? Principle’

Answer 10

Von Colson [1984]

Justification for creating:
> Article 4(3) TFEU requires states take appropriate measures to ensure fulfilment of EU obligations
> Falls on all national authorities – including courts
> Therefore, courts must interpret/apply national law adopted to implement Directives to ensure Directive’s objectives fulfilled “as far as given discretion to do so”

Question 11

State Liability – ‘????? Conditions’

Answer 11

Francovich [1991]

State can be required to pay compensation for damage as a result of failure to implement a Directive

Established 3 Francovich conditions:

1. Result prescribed by Directive should entail granting rights to individuals
2. Able to identify content of those rights from the directive
3. Causal link between breach of State’s obligation and loss suffered

Question 12

Indirect effect:

House of Lords prepared to interpret implementing (of Directive) legislation against literal wording

Answer 12

Pickstone [1988]

Equal Pay Act 1970 only covered equal pay for same work , female warehouse workers were doing different work of equal value

(Equal Pay Act amended by UK Regulations 1983, intended to make UK comply with EU law)

Question 13

Indirect effect:
House of Lords prepared to interpret national legislation implementing Directive more broadly than wording – as if extra words added

Answer 13

Lister [1989]

“Immediately before the transfer” read as if followed by “or would have been so employed if had not been unfairly dismissed [prior to the transfer]”

(Previous ECJ case interpreted Directive to mean: workers whose employers terminated because of transfer should be considered still employed at date of transfer – so protected)

Lord Oliver: “greater flexibility is available to the Court in applying a purposive construction to legislation designed to give effect to the UK’s Treaty obligations”

Question 14

House of Lords: wouldn’t use indirect effect when interpreting non-implementing legislation

Answer 14

Duke [1988]

Same as Marshall (retirement age) but with private employer

House of Lords unwilling to use purposive interpretation of UK Sex Discrimination Act 1975 to give indirect effect to Equal Treatment Directive

House of Lords reasoning:
> Act not intended to implement Directive
> Lord Templeman: unfair to employer who’d acted in accordance with national law (which specifically allowed retirement inequality)

Question 15

ECJ: should use Indirect Effect even when applying non-implementing legislation

Answer 15

Marleasing [1990]

ECJ: even ancient Spanish Civil Code must be read to give effect to Directive

Goes further than Von Colson, which only imposed obligation insofar as courts had discretion under national law to interpret that way – restrictions under national law aren’t mentioned

Question 16

House of Lords: should use Indirect Effect where possible even with non-implementing legislation, but obligation only applies if its possible

Answer 16

Webb [1995]

Pregnancy discrimination by EMO Air Cargo

Claimant: A.5 Equal Treatment Directive to interpret Sex Discrimination Act 1975
(Case on dismissal, ECJ previously found refusal of employment due to pregnancy contravened A.5)

Court of Appeal initially held couldn’t read Act to conform with Directive without unduly twisting meaning, appealed to HoL which made Article 267 reference

ECJ: held that dismissal on grounds of pregnancy was directly discriminatory

Lord Keith: national court only under obligation to interpret national legislation in light of EU legislation if possible (quoted Von Colson and Marleasing)

In this case, possible to read Sex Discrimination Act 1975 in line with ECJ’s ruling

Question 17

ECJ:
> Can’t rely on direct effect of Directive even against state if Van Gend criteria aren’t met – but courts can try and use indirect effect

> In this case, was conflict between national law and directive so court couldn’t apply via indirect effect

Answer 17

Wagner Miret [1993]

Directive required States adopt measures to ensure guarantee institutions pay employees’ salary arrears in event of employer insolvency

(Didn’t meet Van Gend criteria as wasn’t unconditional + was discretion over identity of guarantee orgs)

Spanish law excluded higher management

Question 18

ECJ: national courts shouldn’t apply indirect effect to a criminal statute

Answer 18

Arcaro [1996]

Interpretative obligation hits limit where it “leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed”

Case: Would be guilty of crime if implementing legislation correctly drafted, but not according to actual wording

Question 19

ECJ: reiterated Arcaro on not imposing obligation laid down by a directive which hasn’t been transposed – but in a non-criminal case

Answer 19

Kofoed [2007]

Case: income tax on shares in Denmark

Question 20

ECJ modified Francovich conditions:

1. Damages for any EU law breach e.g. Treaty article
2. New condition: where State has wide discretion, prove breach is sufficiently serious

Answer 20

Brasserie du Pecheur / Factortame 4 [1996]

Sufficiently serious = “manifestly and gravely disregarded limits on powers” – factors to consider:

1. Clarity/precision of rule, level of discretion left
2. If infringement + damage was intentional
3. If any error of law excusable
4. If position of any EU institution contributed to the omission
5. Adoption/retention of national measures contrary to EU law

Germany: barred import French beer – breached (now) A.34 TFEU (goods)

UK: Merchant Shipping Act 1988 stopped Spanish fishermen catching part of Brit quota – breached (now) A.49 TFEU (services)

Question 21

Case giving guidance on how to apply Brasserie du Pêcheur/Factortame factors when deciding if breach “sufficiently serious”

Answer 21

British Telecoms [1996]

> Had Commission given any guidance on matter?
Any guidance in ECJ case law?
Had other States made same mistake?

Case: British Telecoms unsuccessfully sued for losses from incorrect implementation of Directive – ECJ found breach not serious enough to make liable to pay damages (Directive unclear and other States made same mistake)

Question 22

ECJ: not implementing a Directive is always sufficiently serious, so just apply Francovich conditions

Answer 22

Dillenkofer [1996]

ECJ: where no legislative choice to make and little/no discretion when exercising power, mere infringement of EU law might count as “sufficiently serious”

Failing to implement a Directive always counts as “manifestly and gravely” ignoring limits on power
(in such cases can just apply Francovich conditions)

Question 23

State liability in case concerning an administrative act

Answer 23

Hedley Lomas [1996]

Question 24

State liability in case concerning a judicial act

Answer 24

Kobler [2003]

Question 25

Established EU law is supreme even over later national law

Answer 25

Costa [1964]

> Can’t “give preference to a unilateral and subsequent measure against a legal order accepted by [State] on a basis of reciprocity”

> EU membership entails “a permanent limitation on sovereign rights, against which a subsequent unilateral act, incompatible with the [aims of EU] cannot prevail”

> Noted: (now) Article 288 TFEU indicated power transfer from State to Union institutions, (now) Article 4(3) TEU committed States to observe EU law

Question 26

EU law is supreme even over national constitutional principles (fundamental rights)

Answer 26

Internationale Handelsgesellschaft [1970]

Question 27

EU law is supreme – including general principles of EU law, like equality

Answer 27

Mangold [2005]

Question 28

EU law is supreme – including general principles of EU law, like the fundamental right to a fair trial

Answer 28

Benkharbouche [2015]

Sudanese and Libyan embassies – employment issues:
> unfair dismissal
> race discrimination
> holiday pay
> non-payment of wages
> breach of Working Time Regulations 1998

Court of Appeal:
> Race discrimination + breach of Working Time Regulations 1998 within scope EU law
> Article 47 Charter of Fundamental Rights on right to fair trial – gives effect to general principle EU law, so horizontal direct effect
> State Immunity Act should be disapplied to discrimination and working time claims, application would breach Article 47 rights

Question 29

EU Supremacy

ECJ: once it has declared a national law in conflict with EU law, national courts don’t need to wait for law to be repealed/amended before refusing to apply

Answer 29

Simmenthal [1978]

NB: principle of supremacy doesn’t render conflicting national law invalid – no effect to extent of conflict, still effective in situations with no EU law implications

Question 30

EU Supremacy

Can require courts to do something they don’t have power to in national law

Answer 30

Factortame 2 [1991]

Injunction to suspend Merchant Shipping Act 1988 until judicial review case decided, based on Article 267 referral

HoL asked if EU law obliged/authorised to grant interim relief, pending Article 267 ruling – though no power in English law to suspend Act of Parliament
i.e. if it must disapply rule of national law

ECJ: ruled court must recognise EU law supremacy
> Hadn’t established fishermen rights under Treaty, putative right should still be respected
> English law couldn’t stand in way

Didn’t technically order injunction but little other choice

Question 31

Case

ECJ: main sources of “inspiration” for fundamental rights

Answer 31

Nold [1974]

> Common constitutional traditions of States
International treaties for protecting human rights, in which Member States participate

Question 32

Case + Treaty

ECHR human rights as general principles of EU law

Answer 32

Kirk [1984]

ECHR separate from EU law, but all Member States signatories so its principles can be said to be common
> In 1977, its institutions (inc. ECJ) issued joint declaration of commitment to its principles
> Generally, ECJ will apply/respect any ECHR provision – if in context of matter of EU law

Treaty of Lisbon (effective 2009) requires EU accede to the Convention – ongoing negotiations about how

Question 33

Case + TEU Article: definition of proportionality

Answer 33

Fedusa [1990]

ECJ gave 3 part definition of proportionality:

1. Measures appropriate/suitable to achieve desired objective
2. Necessary to achieve desired objective
3. Must not go further than required to achieve

Now also in Article 5 TEU (not identical wording)

Question 34

EU Regulation invalid as contravened 2 general principles

Answer 34

Skimmed-Milk Powder [1977]

EEC Council wanted to reduce skimmed milk surplus: animal feed producers must buy instead soya, but 3x expensive

ECJ held Regulation was invalid, main reason was it contravened 2 general principles:
> Proportionality – reducing surplus could have been achieved by less burdensome means
> Equality – imposed extra burden on lots of agriculture but only benefited dairy farmers, discriminated against other types of farmer

Question 35

TEU Article:

states must take appropriate measures to ensure fulfilment of EU obligations

Answer 35

Article 4(3) TEU

Question 36

Choosing appropriate national remedy for breach of EU law

Answer 36

Marshall 2 [1986]

ECJ: national courts must bear in mind 2 rules when choosing appropriate national remedy:

1. Equivalence – breaches of EU law treated same as breach of national law
2. Effectiveness – remedy must be effective to protect EU rights (i.e. adequate remedy)

Case:
> Challenged English law limiting unfair dismissal in sex discrimination cases to £6,250 – damages assessed at £18,405
> Also, industrial tribunal unsure if could award interest