Indirect & incidental effect Flashcards
Definition of incidental effect
Where a MSs unfulfilled obligations under a Directive TO NOTIFY THE EU has ramifications for private individuals in a legal dispute, the EU directive can be relied upon as a defence
The ECJ accepts that sometimes national law is incapable of being read so as to give effect to a directive - there is no duty on domestic courts to achieve a result that goes against domestic law, remedy for the individual would instead be an action for state liability
Evobus (imposes a limit on the extent of Marleasing). (Could be read as going against Marleasing so be careful with use)
The case that says the principle of indirect effect applied even during a transposition period
Wallonie
Definition of indirect effect
An innovation of the ECJ to mitigate the unfairness that can be caused by the fact that directives can only be vertically directly effective. Imposes an obligation on domestic courts to read national law so as to achieve the purposes of a directive.
Case which established the doctrine of indirect effect
Von Colsen: MSs should take “all appropriate measures” to ensure fulfillment of EU obligations - Art 4(3) TEU
Indirect effect cannot operate where it would make an individual criminal
Luciano Arcaro
Case which extended the Von Colsen doctrine to all domestic law, even that which predates the directive
Marleasing
What cases should you try as a last resort in a problem question about directives and their effect in individuals
Mangold and Kucukdeveci
Two cases which illustrate the operation of incidental effect
CIA (burglar alarms) and Unilever (Olive oil)
A case which says that equality is a general principle of EU law, so where domestic law does not achieve the aims of an unimplemented directive shoudl be interpreted in accordance with that general principle
Mangold
Reason for creation of indirect effect
There is a duty on MSs not to do anything during an implementation period which might compromise the aims of a directive
