Indirect Effect Flashcards
What is Indirect Effect
the principle that national courts are required to interpret national law in a way that is consistent with EU law. If there is a conflict between national law and EU law, national courts must interpret national law in a way that gives effect to the requirements of EU law.
de Burca - necessary to ensure uniform application of EU law across member states + co-operation
Weiler - not absolute rule, means to an end
When does indirect effect apply?
- the provisions of EU law is not clear, precise and unconditional
- the claimant wants to enforce a directive against a private party.
Duty of Interpretation - Origin
Van Colson - Female prison worker gets discriminated, sanctions were weak, argued that weak sanctions contravened directive, provision was not precise
Held: Duty on national courts to interpret national law in the light of the wording and purpose of the Directive in order to achieve its aims
Duty of Interpretation - Horizontal
Marleasing - owed money by another company which created a new company, in spanish civil code lack of cause permitted annullment of company which M sought bc they thought they were trying to escape debt
Directive had no ‘lack of cause’ reason for annullment, relied on by La Comercial
Held:
Duty of interpretation applies in all circumstances as far as possible to do so, including for private parties (horizontal). Indirect effect applies also to national laws not intended to implement Directives.
Duty of Interpretation - Before Directive Time Limit
Adeneler - Duty to interpret national law in conformity with a Directive ‘exists only once the period for its transposition has expired’.
Limits to the Duty -
Unambiguous National Law
Wagner Miret - Wages to workers where a company goes out of business (insolvency directive) but Spanish law excluded higher management.
Held:
Couldn’t use indirect effect as the national law was unambiguous - no room for interpration
Limits to the Duty -
Contra legem
IMPACT - Fixed term work directive implemented late in IE, Impact sought retrospective action as many workers had temp contracts renewed just before directive.
Held: indirect effect ‘cannot serve as the basis for an interpretation of national law that goes against the law - statutes in ireland cannot be applied retrospectively, so relief sought was illegal
Limits to the Duty -
Pre-existing Case Law
Ajos - Employees entitled to a pension were excluded from a severance payment. The CJEU had already held this was contrary to EU law on age discrimination.
Interpreting the national legislation in compliance with the CJEU judgment conflicted with pre-existing national case-law
CJEU: requirement to interpret national law consistent with EU law - obligation for national courts to change its established case-law - or disapply national leg due to gen principle of non-discrim of age
Danish SC: CJEU exceeded its limits of its powers, cannot disapply national leg on gen principle of eu law
