INDIRECT EFFECT AND STATE LIABILITY Flashcards
What case established indirect effect?
Von COLSON
- A6 on the Equal Treatment Directive couldn’t be found to have direct effect
How did IE arise?
A5 EC (A4(3)TEU) ‘take all appropriate measures’
- binding one all authorities including courts to ensure that domestic law is interpreted to conform with the purpose of a directive
Vertical IE
Von Colson
Horizontal IE
HARZ
Marleasing
‘Interpret as far as possible to do so’
- Not dependent on national law
- Can use provisions of unimplemented directives
DOESNT MATTER IF NATIONAL LAW MADE BEFORE OR AFTER THE DIRECTIVE
PLEIFFER
National court must consider national law as a whole
WAGNER MIRET
Confirmed the principle of Marleasing - as far as possible
No steps taken to amend Spanish law as it was considered unnecessary
IE can’t be used where national law expressly contradicts EU law
PUPINO
- IE used for decisions
- Not required to interpret law contra legend (against clear meaning of its words)
When can IE be used?
After deadline for implementation has passed (Adeneler)
Criminal Pro Against Kolpinghuis
Limited by EU law general principles (legal certainty and non-retroactivity)
Meant m/a can not rely on a directive itself AND independently of an implementing law to determine criminal liability
IE - recommendations and opinions
GRIMALDI - obiter
What case did the Court of Appeal determine the principles for what interpretive obligation entails? What were they?
IDT CARD SERVICES
1) no need to find statutory language unambiguous
2) interpretation can change the meaning of legislation that involves substantial departure from the language
3) Court can’t rewrite and go beyond the interpretation of legislation
4) Court can’t make decisions outside of its powers
What is state liability? When was it established
Allows compensation recovery when a member state has failed its obligations under EU law
FRANCOVICH
Francovich
‘Obliged to make good loss and damage caused’ A5EC
FAILURE TO STEP STEPS OF IMPLEMENTATION
Three conditions:
- directive meant to give individual rights
- should be able to identify such rights on the basis of the directives provisions
- causal link between breach and loss
WAGNER MIRET
Failed to bring national law into line with the Directive
Spanish case - didn’t include senior management of insolvent companies in legalisation to gain compensation
Joint cases of Treaty issues?
New approach?
Brasserie de Pecheur (Beer to Germany)
Factortame (Spanish stopped fishing)
1) Infringed law intended to confer rights
2) Sufficiently serious
3) Causal link
Sufficiently serious list:
- Clear and precise rule?
- Measure of discretion left to M/S
- Breach intentional/excusable?
- EU institution position contributed?
- The amount the m/s adopted/retained national measures contrary to EU law
R v ex parte BT
Damages over directive implementation on telecoms procurement
NOT HELD LIABLE - others made mistake, in good faith, not clear, not contrary, no guidance
R v HEDLEY LOMAS
Damages for refusal to grant UK export license to allow live animal exportation to Spain
MAFF argued A36 breach as D74/577 - stun pre slaughter - not complied with in Spain
STATE LIABLE - DESPITE U.K. NOT HAVING DISCRETION ON THE MATTER
no proof of non compliance of the directive
Relations between Francovich and BDP
Same in substance - DILLENKOFER
Any breach of F would satisfy
Liability over competition law breaches
COURAGE LIMITED V CREHAN
Private Undertakings
Extensions:
Now include breaches of EU law where three BDP conditions can be determined
EXCEPTIONAL CASES = huge errors
KOBLER
The failure of a national court to refer to the COJ for a preliminary ruling
