Indirect Effect Flashcards
What are the limitations to direct effect
Where the law is not clear precise or unconditional
Where someone is seeking to enforce a directive against a private party
What other options are available
- Indirect effect
- Incidential effect
- State liability for breach of EU law
What is indirect effect
Name seminal case
Indirect effect is the duty to interpret national law in conformity with Eu law
Van Colson
Van Colson
Facts: Concerned 2 women who had applied for jobs in prisons in Germany.
They were not hired for discriminatory reasons.
Preferred Remedy: To be hired however, this was not available in German law.
The cost that they incurred by participating in the interview process was minimal and didn’t warrant the remedy sought after.
The sanction under German law was very weak.
The women sought to rely on EUs equal treatment directive.
Directive: Member states should take ‘such measures that are necessary’ when implementing the directive.
Issue: The directive left broad discretion for the member states and did not provide for any particular remedy.
Held:
The Remedy:
This has been left to the discretion of member states, so it’s up to each country to choose what that entails.
However, the remedy must not be so weak as to undermine the effectiveness of the rule.
Direct/Indirect Effect?
This provision could not have direct effect; it was not unconditional and sufficiently precise.
General Rule: Duty on all member states to take all appropriate measures to fulfil the obligations of EU law.
As a result, national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result.
Significance: Moves from a general duty on member states, to sincere cooperation.
There had to be a real and effective remedy.
Member states could choose between different remedies but that remedy has to be real and effective.
What is indirect effect
Remedy where direct effect is unavailable
Cases that say that indirect effect capable in horizontal situations
Marleasing
Pfeifer
Marleasing
Facts: Concerned a Spanish company that owed money to another company that had created a new company.
Marleasing was afraid that they were creating a new company to avoid the debt that was owed to them so sought its annullment.
The new company relied on a company law directive stating that there were no grounds for annulment.
Held: No direct effect as it was a dispute between private parties.
However, the duty of interpretation could apply.
In applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive.
The national court has to go as far as possible in interpreting the national law in light of the directive.
PFeifer
Facts: Concerned Emergency ambulance workers working for the Red Cross.
EU Working Time Directive: Maximum working week of 48 hours.
The workers sought compensation for working more than that.
German law states that workers can work for more than 48 hours per week subject to certain exceptions.
The German workers argued that this was contrary to the directive.
Issue: Is there an obligation on the German courts to interpret their national law in light of the directive?
Held: Could not have direct effect because it was horizontal.
The national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the Directive.
The principle of interpretation requires the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law.
Must consider all of the powers in your jurisdiction and the body of rules in national law.
Cannot just narrowly interpret the national law; must look to see if you can read it in a way that conforms to EU law.
Conclusion: The 48-hour limit applied to the ambulance workers and had to be enforced in their regard.
Limits to indirect effect
Wehere law is unamiguous
Contra Legem
Unambiguoys state case
Wagner
Wagner
Case C-334/92 Wagner Miret [1993] ECR I-6911.
Facts: Concerned a directive that protects workers’ wages if their employer were to become insolvent.
The directive required that member states have a wage institution for the wages to be paid.
The state could do it themselves or delegate this role to a private body.
The Spanish law implementing the directive did not apply to higher management.
Wagner was a senior manager and wanted the court to interpret the law in conformity with the directive because the directive didn’t contain such an exclusion.
Held: No direct effect because the right was not precise as it left discretion.
However, the CJEU could also not interpret the national law in conformity with the directive because the Spanish law was unambiguous.
For indirect effect to be possible, there has to be some possibility that you could interpret the relevant national legislation in a way that it could be read in conformity with EU law.
Contra legel state case
IMPACT
IMPACT
Case C-268/06 IMPACT [2008] ECR I-2483 p.100
Facts: Concerned a directive on fixed-term work that sought to protect workers from abusive use of successive fix term contracts.
Set limits on how often you could be reemployed on a temporary/fixed-term contract.
The directive gave member states a choice on how to implement this:
Require employers to have objective reasons for renewal.
Impose a maximum duration of successive fixed-term contracts.
Can introduce a set number of renewals permitted.
Ireland chose option B: After 4 years, the individual would become a permanent employee.
The directive implementation period expired in 2001 but Ireland introduced it in 2003.
Prior to the Act, some civil servants had been issued temporary contracts of up to 8 years.
Issue 1: Is there direct effect?
Held: No because there were multiple options to choose from therefore it was not clear/precise and unconditional.
Issue 2: Could the rights in the Act be applied retrospectively?
Held: The obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem.
Whilst there is a duty of interpretation, you cannot contravene some basic principles of law.
Basic principle: When the legislature adopts a new law, it only applies to situations that arise after the law has passed.
Conclusion: To interpret the act as applying retrospectively would be contra legem.
Does the duty of interpretation mean that national courts have to change their pre-existing national case law?
state case
Ajos
Ajos
Case C-441/14 Ajos ECLI:EU:C:2016:278 p.33-35
Facts: Concerned a Denmark employee who was made redundant and was entitled to a severance payment.
Danish law stated that if you were already entitled to a pension, you would be excluded from the severance payment.
Held: This was contrary to EU law on age discrimination.
However, this was a private sector employee so direct effect was not possible.
Issue 1: Interpreting the national legislation in compliance with the CJEU judgment conflicted with pre-existing national case law
Held: The requirement to interpret national law in conformity with EU law entails the obligation for national courts to change its established case-law.
Whilst a national court can’t change the wording of their legislation, if the barrier is the content of case law, the expectation is that national courts change their case law.
Issue 2: Danish courts said that they could not do that.
Held: If it cannot do so, then the national legislation could be disapplied because it was in conflict with the general principle of non-discrimination on grounds of age.
If their existing case law didn’t change, they could have direct effect through a general principle of EU law.
Unwritten General Principle: Equal treatment irrespective of age.
Criteria for indirect effect of directives
It’s a duty that applies once the time limit for implementing the directive has expired.
Courts must interpret national law as far as possible so that it can conform with EU law.
But cannot do this if the national law is unambiguous and leaves no room for interpretation.
Also cannot do so if the interpretation is contra legem.
Danish SC response
Rejected the judgement of the CJEU.
It was not possible to reinterpret their national legislation.
National legislation could not be disapplied on the basis of a general principle of EU law.
This exceeded the terms of Danish accession to the EU.
Note:
There is a possibility of direct effect of a general principle of EU law but the courts have not revisited this again.
Incidental effect
State casr
Concerns disputes between private parties where there is also an engagement of the state, ie. Triangular situations.
Unilever
Unilever
ase C-443/98 Unilever Italia v Central Foods [2000] ECR I-7535.
Facts: Concerned Italy trying to safeguard its olive oil.
Companies were importing olives from other countries and bottling them in Italy.
They would then label them as Italian olive oil.
Italy wanted to prevent this, so it began a process of adopting a law to say that it had to be entirely produced in Italy.
Central Foods rejected a delivery of olive oil from Unilever which was in breach of Italian labelling law.
Unilever relied on a directive that stated that Italy had a duty to notify the commission of draft laws on labelling products due to their potential impact on trade and did not do so.
The Commission notified Italy that the law would not be enforceable due to the directive but Italy adopted it anyway.
Held: Italian law could not be applied as it had breached the Directive.
The Directive creates neither rights nor obligations for individuals, it only obliges the member state to comply.
Incidental Effect: Because Italy had breached the directive, Unilever received consequential rights from the directive even though the initial situation was Horizontal.
Mitigating the kimits of direct effect through
Indirect Effect
Incidental Effect
State Liability for breaches of EU law.
