Indirect Effect and State Liability Flashcards
Von Colson
First established Indirect Effect
Harz
Indirect Effect available against a private party
Marleasing
1) indirect effect applies whether the provisions in question were adopted before or after the directive
2) national courts required to interpret legislation ‘as far as possible’
Wagner Miret
No Indirect Effect where national law expressly contradicts EU law
Pupino
No requirement to interpret ‘contra legem’
Adneler
Indirect Effect only available once implementation deadline has passed (directives).
Kolpinghuis Nijmengen
Indirect Effect is:
1) limited by principles of EU law
2) cannot be relied upon, independently of an implementing law, to determine or aggravate criminal liability
Frankovich
Established State Liability
Rationale:
1) full effectiveness of Community rules would be impaired and protection of rights weakened if individuals were unable to obtain redress
2) MSs must take all appropriate measures to ensure Treaty obligations are fulfilled.
State Liability Requirements (Frankovich)
1) The result prescribed by the Directive should entail the grant of rights to individuals
2) It should be possible to identify the content of those rights on the basis of the Directive
3) There must be a causal link between the breach and the loss / damage suffered
Brasserie du Pecheur (And joined case ‘Factortame III)
1) SL applicable to any breach of EU law by a MS
2) It does not matter which organ of the MS is responsible
3) Applicable even if the measure has DE too
State Liability Requirements (Brasserie du Pecheur / Factortame)
1) the rule infringed must be intended to confer rights on individuals
2) the breach must be sufficiently serious
3) there must be a direct causal link between the breach and the damage suffered
‘Sufficiently Serious’ Considerations (State Liability)
1) The clarity and precision of the rule breached
2) The measure of discretion left to MS by the rule
3) Whether the breach was intentional or excusable
4) Responsibility of EU institution in breach
5) Extent to which MS adopted or retained national laws contrary to EU law.
British Telecommunications (BT)
1) No State Liability breach because:
- lack of precision in the directive
- good faith interpretation which not obviously wrong
- same interpretation made by other MSs
- Not manifestly contrary to the Directive’s wording or objective
- No guidance from Community institutions
(Contrast with Hedley Lomas)
Dillenkofer
Established the two SL liability tests (1. Frankovich and 2. B du P / Factortame) are the SAME in substance.
State Liability Remedies
Only compensation
