Judicial Protection in National Courts Flashcards
Van Gend En Loos
Established original test for direct effect:
- Clear and precise
- Unconditional
- Negatively Phrased
Van Duyn
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
Reyners v Belgium
Direct Effect: Application of criteria
Positive obligations on MSs could be directly effective
Defrenne v Sabena
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.
Amsterdam Bulb
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
Ratti
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
Mangold
Direct effect of directives
MS cannot adopt legislation that is contrary to the objectives of the directive in its implementation time frame
Marshall
Directives can only be vertically directly effective
Directives may not impose obligations directly upon individuals, so may not be relied upon against them
Foster v British Gas
Vertical Direct Effect
Test for being part of a member state:
- Responsible for providing a public service
- Public service is under the control of the state
- Has for that purpose special powers beyond those applicable to relations between individuals.
Van Colson and Kamman
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
Marleasing
Indirect Effect
Expanded indirect effect so that all national legislation should be interpreted in light of EU law ‘as far as possible’.
Grimaldi
Indirect Effect
National courts must take into account of both EU ‘hard law’ and non-binding recommendations in interpreting national law
Wagner-Maret
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
Adeneler
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
Rolex
Limits of indirect effect
Duty of interpretation was held not to apply where it violated the principles of legal certainty and non-retroactivity
CIA securities v Signalson
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.
Wells
Incidental Direct Effect
The fact that a directive had adverse repercussions on a 3rd party could not prevent it being invoked against a state
Brasserie du Pecheur and Factortame
State Liability
Elements of state liability:
- Provision intended to confer rights on individuals
- Breach must be sufficiently serious
- Must be a causal link between the breach and the damage
indicated states were liable for acts of all public institutions
BT PLC
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.
Denkavit
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
Dillenkofer
State Liability: Sufficiently Serious Requirement
Might easily be satisfied where there is a complete failure to transpose a directive
Kobler
Traghetti
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.
Definition: National Procedural Autonomy
Principle under which the procedural rules and remedies before national courts fall under the competence of MSs
Definition: Direct Effect
Idea that rights conferred by treaties etc should be justiciable for individuals in front of their own national courts
Definition: Indirect Effect
duty to interpret national law in accordance with EU law
Definition: State Liability
Mechanism for penalisation of MSs for their failure to correctly implement EU law
Definition: Incidental direct Effect
where the duty of indirect effect has consequences for a third party
Levez
National Proceedural Autonomy: Equivalence
Factors to be taken into account when deciding similarity:
- Purposes and characteristics of relevant domestic action
- Role played by that provision in the procedure as a whole
- Operation/ special features before different national courts
National Procedural Autonomy: equivalence
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
National Procedural Autonomy: effectiveness
National rules should not make it impossible/excessively difficult to obtain a remedy in relation to EU rights
Butterfharten
National Procedural Autonomy: effectiveness
the treaty was not intended to create new remedies in the national courts to ensure the observance of union law
Factortame
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
Marshall II
National Procedural Autonomy: effectiveness
To be effective financial compensation must enable the loss and damage sustained to be made good
Emmott
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
Peterbroeck
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:
- The role of the provision in the procedure
- Special features before the different national courts
- Basic principles of the domestic judicial system.
