Judicial Protection in National Courts

Question 1

Van Gend En Loos

Answer 1

Established original test for direct effect:

1. Clear and precise
2. Unconditional
3. Negatively Phrased

Question 2

Van Duyn

Answer 2

Direct Effect: Application of criteria

A provision not completely unconditional could still be directly effective if the qualification/condition was subject to judicial control

Direct Effect of Directives:

Ruled directives could generate direct effect
Original Justification: useful effect would be weakened if individuals could not rely upon them before national courts

Question 3

Reyners v Belgium

Answer 3

Direct Effect: Application of criteria

Positive obligations on MSs could be directly effective

Question 4

Defrenne v Sabena

Answer 4

Modern test for direct effect:
Is the substance of the provision sufficiently
1. Precise
2. Unconditional

Addressed the institutional implications of allowing positively phrased obligations to be directly effective
2 forms of direct effect established:
Vertical Direct Effect: Party invokes provisions of EU law against a member state
Horizontal Direct Effect: Party invokes provision of EU law against another private party
Treaty Articles and Regulations can be relied upon in both horizontal and vertical situations
Directives can only be relied upon in vertical situations.

Question 5

Amsterdam Bulb

Answer 5

Direct Application

Definition: entry into force and application in favour of or against those subject to a measure are independent of any measure of reception into national law

Question 6

Ratti

Answer 6

Direct Effect of Directives
New justification for direct effect of directives after Van Duyn received backlash

Estoppel. It would be wrong for a MS to gain advantage throughout its failure to carry out its obligations to implement directives

Directives will only be directly effective from the end of their transposition period, if the Ms has failed to implement them correctly

Question 7

Mangold

Answer 7

Direct effect of directives

MS cannot adopt legislation that is contrary to the objectives of the directive in its implementation time frame

Question 8

Marshall

Answer 8

Directives can only be vertically directly effective

Directives may not impose obligations directly upon individuals, so may not be relied upon against them

Question 9

Foster v British Gas

Answer 9

Vertical Direct Effect

Test for being part of a member state:

1. Responsible for providing a public service
2. Public service is under the control of the state
3. Has for that purpose special powers beyond those applicable to relations between individuals.

Question 10

Van Colson and Kamman

Answer 10

Indirect Effect

Female social workers applied to work in prison, were rejected in favour of 2 males.
Domestically argued that this breached equal opportunities directive
Court agreed but only remedy available was reimbursement of travel expenses
Asked CJEU what remedy was needed to give effect to the directive
Held that to give effect to the directive the MS had to make sure remedies were available which were effective and capable of having a deterrent effect
Therefore, as an effect of indirect effect, a higher level of compensation needed to be offered
Indirect effect only applied when national laws were implementing a directive and the provision was highly ambiguous

Question 11

Marleasing

Answer 11

Indirect Effect

Expanded indirect effect so that all national legislation should be interpreted in light of EU law ‘as far as possible’.

Question 12

Grimaldi

Answer 12

Indirect Effect

National courts must take into account of both EU ‘hard law’ and non-binding recommendations in interpreting national law

Question 13

Wagner-Maret

Answer 13

Indirect Effect

The strength of the interpretative duty is not so strong so as to require a provision of national law to be given a meaning that contradicts its ordinary one

Question 14

Adeneler

Answer 14

Indirect Effect

Full force of the duty to interpret only takes effect from the date of transposition of a directive into EU law
During the transposition period the national courts have a lesser duty to interpret national law in a manner that is not contrary to the objectives of the directive

Question 15

Rolex

Answer 15

Limits of indirect effect

Duty of interpretation was held not to apply where it violated the principles of legal certainty and non-retroactivity

Question 16

CIA securities v Signalson

Answer 16

Incidental Direct Effect

An national law rendered inapplicable by a directive could not be relied upon by one party against another, as the directive the law stemmed from would become directly effective instead.

Question 17

Wells

Answer 17

Incidental Direct Effect

The fact that a directive had adverse repercussions on a 3rd party could not prevent it being invoked against a state

Question 18

Brasserie du Pecheur and Factortame

Answer 18

State Liability

Elements of state liability:

1. Provision intended to confer rights on individuals
2. Breach must be sufficiently serious
3. Must be a causal link between the breach and the damage

indicated states were liable for acts of all public institutions

Question 19

BT PLC

Answer 19

State Liability: Sufficiently Serious Requirement

Directive was wrongly interpreted by UK to only apply to BT, rather than all telecommunications providers
BT claimed the UK owed them damages for not making other players in the market liable in the same way- restriction of freedom to provide services
UK’s defence was that the directive was imprecisely worded, and every other MS had implemented it in the same way and there was no other case law to explain it.
CJEU agreed that the breach was not sufficiently serious as the wording was unclear enough to make the mistake excusable.

Question 20

Denkavit

Answer 20

State Liability: Sufficiently Serious Requirement

Company taxed by Germany as a result of the way it had interpreted a directive, but subsequent case law decided this interpretation was wrong
Held that Germany had discussed implementation with the council at the time
Therefore breach was not sufficiently serious as the error was contributed to by an EU institution

Question 21

Dillenkofer

Answer 21

State Liability: Sufficiently Serious Requirement

Might easily be satisfied where there is a complete failure to transpose a directive

Question 22

Kobler

Traghetti

Answer 22

State Liability

Q was asked whether a national court could be liable under state liability for failing to refer a question under art 267
Held yes, but only if the court in question was a court of last instance

Confirmed Kobler, expanded judgement to apply to all courts
Liability to be determined on the basis of competence rather than fault.

Question 23

Definition: National Procedural Autonomy

Answer 23

Principle under which the procedural rules and remedies before national courts fall under the competence of MSs

Question 24

Definition: Direct Effect

Answer 24

Idea that rights conferred by treaties etc should be justiciable for individuals in front of their own national courts

Question 25

Definition: Indirect Effect

Answer 25

duty to interpret national law in accordance with EU law

Question 26

Definition: State Liability

Answer 26

Mechanism for penalisation of MSs for their failure to correctly implement EU law

Question 27

Definition: Incidental direct Effect

Answer 27

where the duty of indirect effect has consequences for a third party

Question 28

Levez

Answer 28

National Proceedural Autonomy: Equivalence

Factors to be taken into account when deciding similarity:

1. Purposes and characteristics of relevant domestic action
2. Role played by that provision in the procedure as a whole
3. Operation/ special features before different national courts

Question 29

National Procedural Autonomy: equivalence

Answer 29

Procedural rules for EU rights laid down by national law must not be less favourable than those relating to similar actions of a domestic nature

Question 30

National Procedural Autonomy: effectiveness

Answer 30

National rules should not make it impossible/excessively difficult to obtain a remedy in relation to EU rights

Question 31

Butterfharten

Answer 31

National Procedural Autonomy: effectiveness

the treaty was not intended to create new remedies in the national courts to ensure the observance of union law

Question 32

Factortame

Answer 32

National Procedural Autonomy: effectiveness

While an MS is not obliged to create a new remedy, but may have to adapt the circumstances in which an existing remedy is applied

Question 33

Marshall II

Answer 33

National Procedural Autonomy: effectiveness

To be effective financial compensation must enable the loss and damage sustained to be made good

Question 34

Emmott

Answer 34

National Procedural Autonomy: effectiveness

A national rule may be disallowed, even if it confers with equivalence and effectiveness, to prevent a State from taking unfair advantage of its own failure to comply with a directive

Question 35

Peterbroeck

Answer 35

National Procedural Autonomy: effectiveness

Where CJEU steps in where a national rule restricts the ability of national courts to consider EU law of their own motion, they will analyse:

1. The role of the provision in the procedure
2. Special features before the different national courts
3. Basic principles of the domestic judicial system.