Indirect Effect and State Liability

Question 1

Which case set the precedent that failure to make an obligatory reference to the CoJ is serious enough for state liability?

Answer 1

Kobler

Question 2

Are the Francovich and Brasserie tests the same?

Answer 2

Yes - Dillenkofer v Germany

The same in substance. A failure to implement a directive before the deadline is automatically a serious breach for state liability

Question 3

Why are the British Telecommunications and Hedley Lomas case commonly contrasted?

Answer 3

Both examples of a directive not being properly implemented - but differing outcomes

B.T - U.K had made a mistake in good faith, where other member states had made the same error. The directive was not clear and there was no guidance given by the EU. This was not grave or manifestly serious enough to warrant state liability

Hedley Lomas
What happened?
· Sought damages for refusal to allow live animals from being exported to Spain (restricting free movement of goods, 35 TFEU). Said they were trying to protect the health and life of animals (36 TFEU), Spanish slaughterhouses did not properly stun animals under Directive 74/577.
o What precedent was set?
· Made a legislative choice beyond its bounds -had no discretion to make this choice, already had implemented 74/577, was not their place to do it for Spain. Grave and serious enough for State Liability

Question 4

What case established Indirect Effect?

Answer 4

Von Colson & Kamann v Land Nordrehein-Westfalen

What happened?
· Two female social workers tried to get jobs in German Federal State prison service. Turned down because they were female and the jobs went to less qualified males. Argued sex discrimination contravening Directive 76/207 (Equal Treatment Directive). Only got damages from West German court. CoJ found the directive not sufficiently clear, precise and unconditional to be directly effective. Drew from article 5 EC for member states to take all appropriate measures to ensure EU obligations are fulfilled.

Question 5

Does indirect effect apply horizontally or vertically?

Answer 5

Harz - The interpretive duty indirect effect imposes on courts applies irrespective of whether the case is vertical or horizontal.

Question 6

What happened in the IDT Case?

Answer 6

Statutory language does not need to be ambiguous for interpretation to take place. Interpretation can change the meaning to substantially depart from the language (can be more or less restrictive). The court CANNOT rewrite legislation in a way that goes beyond interpretation (reading words into it that go against its meaning or cardinal principle). Interpretation cannot let the court make policy choices it is not equipped to predict the consequences of or enact