LACK OF HORIZONTAL DIRECT EFFECT AND STATE LIABILITY Flashcards
MARSHALL
FACTS: 60 year old dismissed as at retirement age. Policy of men 65 and women 60. Breached Equal Treatment Directive. Two questions: 1) could individuals rely on for proceedings against other individuals 2) authority deemed as public or private?
DECISION: Health authority part of the state so claim available.
POL: No horizontal direct effect- exists only in relation to each member state to which it is addressed.
DEFINING STATE= Regardless of capacity in which it is acting, whether employer or PA. Necessary to prevent state from taking advantage of failure to comply.
FRATELLI COSTAZO SPA
DEFINING STATE: All organs of the administration including decentralised authorities such as municipalities, are obliged to apply with provisions.
BROADENING CONCEPT OF THE STATE.
FOSTER
FACTS: Claimed forceable retirement at 60 contravened Equal Treatment Directive. Males could work 5 years more. Needed to prove British Gas Organ of the state. Was. NOTE: NOW IT HAS PRIVATISED.
POL: State body if: i) provides public service, ii) under control of the state, iii) has special powers.
BROADENING CONCEPT OF THE STATE
VON COLSON
FACTS: Female German national refused prison employment due to gender. Contrary to Equal Treatment Directive. Offered compensation for travel cost which did not meet level needed in Directive. HELD, SUBSTANTIAL COMPENSATION NEEDED.
POL: MSs obligation to achieve results is binding on all authorities, including courts. For national courts to interpret and apply the legislation for implementation of direct in conformity with community law, in so far as there is discretion under national law. INDIRECT EFFECT (HARMONIOUS INTERPRETATION)
MARSEALING
POL: Harmonious interpretation also applies where 1) respondent is an individual 2) where there have been no implementing procedure by the MS.
Courts need to apply national law, as far as possible, in light of wording and purpose of directive to achieve result pursued and comply with the treaty.
PFEIFFER
POL: National court is under no obligation to interpret national law contra legem.
HARMONIOUS INTERPRETATION.
CRIMINAL PROCEEDINGS AGAINST X
Directives cannot have effect of determining or aggravating the liability in criminal law of persons who are acting in contraversion of the provisions of the directive.
HARMONIOUS INTERPRETATION
CIA SECURITY
Failure by MS to notify technical standards and regulations. Spills over to private relationships. Renders national regulations inapplicable.
INCIDENTAL HORIZONTAL EFFECTS
JOHANNES
INCIDENTAL HORIZONTAL EFFECTS
Attempt to constrain lines of use. Failure to notify technical regulations does not render use of relevant products unlawful.
KUCUKDEVECI
GENERAL PRINCIPLES applicable to horizontal relationships without limitations. General principle of equal treatment applicable even though Directive to same effect is not. For national court, within jurisdictional limits, to provide protection of EU law. Even if it means disapplying contrary national laws.
FRANCOVICH
MS fails to fulfil obligation under ART 288 TFEU. Reparation available if 3 conditions met: 1) Result prescribed by Directive should entail grant of rights to individuals 2) Possible to identify content of rights on basis of provisions of directive 3) Causal link between breach and loss/damage
FACTORAME AND BRASSRIE
FACTS: French brewer unable to export beer to Germany due to German beer purity laws. Breached free movement of goods. Also, Factorame’s vessels prevented from fishing for UK quotas as UK act required British ownership. Breached freedom of establishment. COMPENSATION.
POL: Extended scope of liability to include ANY BREACH IRRESPECTIVE OF WHICH ORGAN OF STATE WAS RESPONSIBLE FOR THAT BREACH.
NEED ‘SUFFICIENTLY SERIOUS BREACH’- MS or community institution concerned manifestly or gravely disregarded the limits on its discretion.’
FACTORS: 1) Clarity and precision of rule breached, 2) measure of discretion left by rule 3) intentional or involuntary 4) excusable or inexcusable 5) contribution 6) measure or practice contrary.
BT
Misimplementation by UK not SSB as provision NOT CLEAR. UK’s incorrect interpretation in good faith. No guidance from earlier rulings of COJ or Commission.
HEDLEY LOMAS
FACTS: UK refused to license export of live sheep to Spain as Spanish slaughterhouses were allegedly not complying with a Directive. SSB:NO DISCRETION IN DIRECTIVE; PROVISION CLEAR; AND NO PROPERLY IDENTIFIED JUSTIFICATION GROUND.
DILLENKOFFER
FACTS: Germany failed to implement package holiday directive. FAILURE TO TAKE ANY MEASURE AMOUNTS TO A SSB. Reparation if result prescribed entails GRANT OF INDIVIDUALS OF RIGHTS whose content is IDENTIFIABLE and a CAUSAL LINK exists between breach of a state’s obligation and the loss and damage suffered.
