Private Enforcement

Question 1

Who is the claimant?

Answer 1

• Natural person
• Legal person: Sinochem Heilongjiang v Council - Has acquired legal personality following the law governing its constitution or is treated as an independent legal entity by EU institutions

Question 2

What are the ways in which a claimant may seek private enforcement against an EMPLOYER?

Answer 2

• Direct effect principle
• Indirect effect principle
• Mangold principle

Question 3

For DIRECT EFFECT, what are the conditions and cases that should be mentioned?

Answer 3

• Right must be worded in sufficiently clear, precise and unconditional manner

• – Established in Van Gend en Loos
• – Van Duyn: Directive’s provisions, specifically

• Time for implementation of the Directive must have passed
— Ratti

• Must bring against State or an emanation of state

• – Marshall
• – Foster: Emanation of state provides public service, is under control of the State and has special powers beyond normal rules
• – Farrell: BUT don’t need to be both under state control AND have special powers
• – Fratelli Constanzo: City Councils are always considered emanations of State

Question 4

For INDIRECT EFFECT, what are the conditions and cases that should be mentioned?

Answer 4

• Right can be interpreted in line with EU law

• – Established in Von Colson
• – Marleasing: Can use legislation pre-dating the Directive; interpret domestic law ‘as far as possible’, so can omit words

• Cannot distort the meaning of domestic law
— Wagner Miret

• Cannot impose criminal liability
— Luciano Arcaro

• If time for implementation has not passed, cannot use indirect effect
— Adelener

Question 5

For MANGOLD, what are the conditions and cases that should be mentioned?

Answer 5

• Whether nat’l law discriminates against an EU general principle

• – Mangold: Discriminated against age (Art 21)
• – Charter of Fundamental Rights: Compare against this

• Limitations: Does Charter right require additional legislation to protect it?
— AMS: Art 27 must be contained in EU and national laws

Question 6

What are the ways in which a claimant may seek private enforcement against a STATE?

Answer 6

• State liability

Question 7

How are remedies to be granted in general?

Answer 7

• If breach of MS’s EU obligations found, up to MS to determine ‘interim relief’ to compensate claimant
— Factortame I

• MS must have laws and procedures in place to protect citizens’ right to protection under EU law (national system provide procedure)
— Unibet

Question 8

For remedies, explain principle of equivalence.

Answer 8

• Rules governing actions for safeguarding an individual’s rights under [EU] law = Rules governing similar domestic actions
— Von Colson: Can’t just limit compensation to a nominal penalty amount

Question 9

For remedies, explain principle of effectiveness.

Answer 9

• Must allow the exercise of rights under EU law with reasonable ease
— Factortame I

Question 10

For remedies, explain principle of procedural autonomy.

Answer 10

• Up to MS to determine how EU rights of citizens can be protected in law
— Rewe