Indirect Effect Flashcards
Define indirect effect?
a. “The doctrine of indirect effect, developed in Von Colson and Marleasing, is the principle that national courts are under a duty to interpret national law in line with the aims of any relevant EU law, whenever passed”.
From which article does Indirect Effect originate?
b. Originates from Article 4(3) TEU which obliges MSs to take all appropriate measures to ensure the fulfillment of their Union obligations
Von Colson [1984] Facts
Two female social workers refused jobs in a German state prison because of sex. They invoked Equal Treatment Directive which provided MSs must ensure that victims of sex discrimination obtain an effective judicial remedy. ECJ ruled that Art 6 of Directive (unlike Art 5 in Marshall) did not satisfy the criteria for direct effect. Required MSs to enact legislation giving victims of legislation an effective remedy, it did not specify what the remedy was. German legislation had not provided for compensation as clearly as should have. Art. 267 ref.
Van Colson judgement ECJ
ECJ had a radical approach:
. Article 4(3) TEU:
- MSs must fulfill ‘obligations arising out of the Treaties’
. ECJ
- Courts should interpret national implementing legislation in the light of EU law concerned
- Purposive approach – tried to give effect to the provisions of EU law in question
How did the UK courts approach indirect effect following Von Colson?
c. In UK, the courts have ruled that when Parliament passes national legislation intended to comply with obligations under an EU directive, it will be interpreted to give effect to that Directive – Lord Templeman said he had no problem with reading legislation purposively (Pickstone v Freemans [1988])
Pickstone v Freemans [1988]
Female warehouse operatives sought the same pay as men who were doing a different job, on the basis that their work was of equal value to the men’s work. Equal Pay Act 1970, amended by 1983 Regs, only provided that they would be paid the same for doing the same work, not work of equal value. House of Lords prepared to interpret UK legislation to cover equal value claims.
Litster v Forth Dry Dock [1989]
Litster and 11 colleagues all ship repairers. Negotiation for sale of company, hour before the sale, Mr. Litster et al dismissed. Lord Oliver described this as one of the less creditable aspects of the situation. Litster argued that Directive should be given indirect effect:
Directive 77/187, Art 4(1); Transfer of an undertaking should not constitute grounds for dismissal
UK Transfer of undertakings Regs: Protected persons include: a persons so employed immediately before the transfer
House of Lords prepared to read legislation as if words had been added.
Webb v EMO Cargo [1995]
Employed by EMO Cargo after another employee on maternity leave. She then found out she was pregnant and was dismissed. She sought indirect effect as this was private employer. Use of Art. 5 Equal Treatment Directive 1976 (dismissal grounds of pregnancy) in construing UK Sex Discrimination Act 1975. CofA held could not use purposive approach. Appeal to HoL who make Art 267 ref on interp of Directive. ECJ held that this was directly discriminatory. HoL then found in favour of Webb.
Marleasing v La Commercial [1990]
C brought proceedings to have the constitution of the D company declared null and void. This was because it alleged that the company had been created only in order to defraud creditors. D argued that a Directive applied which showed that this ground for nullity could not be relied upon. Directive should have been implemented and hadn’t. Did the Spanish Civil Code (an ancient document and non-implementing) have to be read to give effect to the terms of the Directive?
Non-implementing legislation, from before or after the Directive, must be read in line with the EU law
Wagner Miret
Directive required MS to adopt measures – guarantee institutions should pay employees’ arrears of salary in the event of employer’s insolvency. Spanish law excluded higher management staff from protection. The Directive did not permit this. C could not rely on direct effect as Directive was not unconditional – gave discretion as to ID of guarantee institutions.
C could not rely on indirect effect either, as there was a clear conflict between national law and Directive. National law applied even though contravened Directive.
Wagner Miret
Directive required MS to adopt measures – guarantee institutions should pay employees’ arrears of salary in the event of employer’s insolvency. Spanish law excluded higher management staff from protection. The Directive did not permit this. C could not rely on direct effect as Directive was not unconditional – gave discretion as to ID of guarantee institutions.
C could not rely on indirect effect either, as there was a clear conflict between national law and Directive. National law applied even though contravened Directive.
