Indirect Effect

Question 1

What does indirect effect aim to mitigate?

Answer 1

Issues caused by lack of horizontal direct effect of directives

Question 2

What did Von Colson help adopt in the UK?

Answer 2

Prior to Von Colson, UK courts had adopted a practice of interpreting national legislation in conformity with EU law, but only where the EU law was directly effective (see, for example, Garland v British Rail [1983] 2 AC 751).

Question 3

What was the principle of Harmonious construction after Von Colson?

Answer 3

After Von Colson, the UK courts applied the principle of harmonious construction to EU law which was not directly effective BUT held that the principle only applied to legislation introduced for the purpose of implementing the directive.

Question 4

What were the two question left after Von Colson?

Answer 4

1. Could the principle of indirect effect apply to national legislation that was not intended to implement the Directive?
2. Could the principle of indirect effect apply in horizontal disputes?

Question 5

What did the CJEU hold in Marleasing v La Comercial Internacionale de Alimentation?

Answer 5

Indirect effect extended to all national legislation and applicable in horizontal cases.

Question 6

What does Marleasing require?

Answer 6

Marleasing requires that national courts interpret national law in conformity with EU law “as far as possible”.

Question 7

What is Substantive Treaty Rights?

Answer 7

If a Directive merely embodies substantive rights and obligations already contained in primary EU law, it can be enforced against and individual even if the Directive itself has not been correctly implemented by the Member State.

Question 8

What did the Case of Brunnhofer prove?

Answer 8

The principle of Substantive Treaty Rights could therefore be relied upon in horizontal disputes.