Indirect Effect

Question 1

Why did indirect come about?

Answer 1

As a result of the limitations of using vertical direct effect, the ECJ has used the obligation under the former Art 10 (now Art 4(3) TEU) to conform with and given effect to EU law (irrespective of whether or not it is directly effective) to develop the principle of indirect effect (the Von Colson Principle) which applies to all EU law, not just directives.

Question 2

What did the court state in Van Colson and Kamann v Land Nord Rhein - Westfalen 14/83?

Answer 2

‘Since the under Article 4.3 TEU to ensure fulfilment of (an obligation) was binding on all national courts… it follows that… courts are required to interpret their national law in the light of the wording and purpose of the directive…’

The ECJ in Von Colson ignored the horizontal/ vertical issue, and direct effect generally:
o It was left ambiguous as to which national law indirect effect would apply so, for example, the then House of Lords refused to apply it in Duke.
o It was also left ambiguous how far national courts should go to ensure conformity of national law and EU law.

Question 3

These problems seem to have been resolved in Marleasing SA C-106/89

Answer 3

o The ECJ held that the obligation to conform applied ‘whether the provisions concerned pre-date or post-date the directive…’
o So, its scope in Marleasing is potentially very wide, with consequences for precedent and statutory interpretation.

• Although there does not seem to be a difference between the Van Colson approach (to do ‘everything possible’ to achieve conformity) and the Simmenthal approach (to do ‘everything necessary’)
• The ECJ already seems to have linked the concepts of direct and indirect effect (Johnson v Chief Constable of the RUC 222/84).