Indirect Effect

Question 1

Why was indirect effect conceived as a doctrine?

Answer 1

Make up for exclusion of horizontal direct effect.

Question 2

Which Treaty provision and principle is IE derived from?

Answer 2

Art 4(3) TEU; principle of loyal co-operation.

Question 3

Which case introduced indirect effect and how did it define it?

Answer 3

Von Colson

national courts must interpret and apply legislation passed for the purpose of implementation, in conformity with Community law, in so far as it is given discretion to do so under national law.

Question 4

What doctrine did the UK courts invent before Von Colson?

Answer 4

‘harmonious construction’ in Garland v British Rail endorsing Lord Denning in Macarthys v Smith.

ONLY directly effective EU law.

Question 5

Initial response of UK courts and the case.

Answer 5

Initially, only national legislation introduced to implement directives (Duke)

Indirect effect was accepted without difficulty in Pickstone; Litster; Finnegan

Question 6

Marleasing

Answer 6

Answers two questions left by Von Colson

1. Indirect effect could apply to national law adopted either before or after the directive, and by implication, not for the purpose of implementing a directive. (‘as far as possible’)
2. Could apply to horizontal disputes.

Question 7

Webb saga

Answer 7

Initially - Von Colson/Marleasing was made conditional on not distorting Acts of Parliament.

This reasoning was rejected on application to CJEU, but on second instance in HoL - a harmonious construction in the case was not deemed possible because appellant was a temporary employee who became pregnant.

Question 8

Principles in Pfeiffer

Answer 8

1. Requires domestic courts to consider national law as a whole - they can apply conforming interpretation to more than one statute.
2. Domestic rules of statutory interpretation still apply, and thus, domestic courts must strive as far as possible (affirms Wagner Miret)

Question 9

Wagner Miret

Answer 9

Domestic courts must implement conforming interpretation AS FAR AS POSSIBLE.

Question 10

What is the critical analysis point for indirect effect?

Answer 10

Interpret conforming interpretation as far as possible (Wagner Miret)

Question 11

Can a Directive determine or aggravate criminal liability?

Answer 11

No - Arcaro; Rolex

Question 12

Can a Directive determine or aggravate civil liability?

Answer 12

Yes - Centrosteel.

Even if this would be retrospective.

Question 13

Brunnhofer

Answer 13

If a Directive merely embodies substantive Treaty rights/obligations (primary EU law), it can be horizontally directly effective.

That is the ‘true’ source of the obligation.

Question 14

Mangold/Swedex

Answer 14

Brunnhofer principle extended - Directive embodying GENERAL EU LAW PRINCIPLE derived from Case Law is also sufficient.