Supremacy, Direct Effect, Indirect Effect and State Liability Flashcards
Developed doctrine of direct effect (rights and obligations conferred upon individuals and enforcement in national courts). New legal order of international law. Giant step towards achieving integration, uniformity and effectiveness in the application of EU law within the national legal systems of Member States. Enabling individuals to immediately invoke a European provision before a national or European court.
Criteria for direct effect:
- The provision must be sufficiently clear and precise to give rise to an identifiable individual right.
- It must be unconditional.
Vertical direct effect of a Treaty article fine (so long as criteria satisfied).
Van Gend en Loos
NO. EU law is supreme. Doctrine of supremacy. Supremacy of EU law as a necessary concomitant to direct effect and the new legal order created by the EC Treaty.
Costa v ENEL
Supremacy confirmed (in absolute terms) – ‘Any recognition that national legislative measures which encroach etc had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by Member States to the Treaty and would thus imperil the very foundations of the Community.’
Amministrazione delle Finanze dello Stato v Simmenthal SpA
Clarified/defined the 2 requirements for direct effect – Unconditional where it sets forth an obligation which is NOT qualified by any condition and NOT subject, in its implementation or effects, to the taking of any measure either by Community institutions or by Member States. Sufficiently precise (to be relied upon by an individual and applied by a national court) where it sets out an obligation in unequivocal terms.
Cooperativa Agricola Zootecnica S. Antonio and Others v Amministrazione delle finanze dello Stato
Flexibility of direct effect criteria by Court of Justice: Fine for provision to raise questions of interpretation which can be resolved by a court.
Directives are capable of having direct effect.
Justification (not well received by certain national courts in France and Germany who refused to give directives direct effect on this basis because they thought ECJ was exceeding its jurisdiction):
- Would be incompatible with the binding effect of directives to exclude direct effect.
- The useful effect of an obligation being imposed by a Directive would be weakened if individuals were prevented from relying on it before their national courts.
Directives capable of being vertically directly effective.
Van Duyn v Home Office
Flexibility of direct effect criteria by Court of Justice: Fine that Member State able to choose among several possible means of achieving the result required by the Directive.
(Example of failure to satisfy direct effect criteria.)
Principle of state liability: ‘It is a principle of Community law that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible.’ Justification:
- Article 4(3) TEU requirement on Member States to fulfil their Treaty obligations also included remedying the consequences of breaching those obligations.
- Effectiveness of EU law would be circumscribed were Member States not obliged to provide a remedy in these situations.
3 conditions for state liability:
- Result prescribed by the directive should entail the grant of rights to individuals.
- It should be possible to identify the content of those rights on the basis of the provisions of the directive.
- Existence of a causal link between the breach of the State’s obligation and the loss and damage suffered by the injured parties.
Francovich & Bonifaci v Italian Republic
(Direct effect criteria in practice. Example of satisfaction of criteria.)
Horizontal direct effect of a Treaty article fine.
Defrenne v SABENA
(Example of failure to satisfy direct effect criteria.)
Established principle of indirect effect: provisions of directives (later all pieces of law) can be used by national courts in interpreting meaning and scope of national legislation.
‘…in applying the national law and in particular the provisions of national law specifically introduced in order to implement Directive…, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in Article 288 TFEU.’
‘…in so far as it is given discretion to do so under national law’
Von Colson & Kamann v Land Nordhein-Westflen
No discretion left to Member States after deadline had passed, therefore not conditional. So an article imposing a positive obligation could have direct effect once the deadline has passed.
Alfons Lütticke GmbH v Hauptzollamt Saarlouis
Van Gend en Loos
FACTS: Urea formaldehyde imports from West Germany to Holland (by van Gend). Customs duty increase due to classification change. Article 12 prohibition on new customs duties (now Article 30 prohibition on all customs duties).
Costa v ENEL
FACTS: Costa is a shareholder in electricity company. Company nationalized by Italian government. Refused to pay electricity account (£1) because he says nationalization legislation is contrary to Community law. Italian government says, ‘But it’s our domestic law!’
Francovich & Bonifaci v Italian Republic
FACTS: Directive 80/987 – bankruptcy of a company + employees being able to claim outstanding wages from guarantee institution established by Member State. Italy had not implemented the directive, and there was no national law through which to claim. Held: Directive did not have direct effect because unclear whether guarantee institution should be public/private body. In Commission v Italy, Italy found to be in breach of its obligations in not having implemented, but people still needed to be compensated…therefore Court found that Italy could be held liable.
Defrenne v SABENA
FACTS: Air hostess vs employer (Belgian airline). Sex discrimination in terms of pay. Alleged infringement of Article 157 TFEU. Airline accepted discrimination but said article did not confer legal right which could be enforced in a national court. Held: Article was sufficiently clear and precise due to the level of detail provided re concepts of ‘pay’ and ‘work’, making it possible to identify when direct discrimination arose solely using criteria in article. BUT not indirect/disguised discrimination.
Article in question only referred to Member States, but held that unless it could have horizontal direct effect, the effectiveness of the principle of equal pay for equal work would be adversely affected by failure of Member States to exercise the principle.
Von Colson & Kamann v Land Nordhein-Westflen
FACTS: 2 women failed in applications to be social workers in male prison on grounds relating to their sex. Rejected in favour of less well-qualified male applicants. National court found they’d been discriminated against but, under West German law, could only award them travel expenses to compensate. Equal Treatment Directive: ‘such measures as are necessary to enable…persons… to pursue their claims by judicial process…’ Held: NOT unconditional or sufficiently clear/precise therefore no direct effect.
There was a German law implementing the Directive on which the women could rely. Court used Article 4(3) TEU to draw principle of indirect effect: Requires that Member States ‘take all appropriate measures’ to ensure that their obligations under EU law were fulfilled. Binding on ‘all authorities of Member States’ therefore national courts required to interpret in conformity with wording and purpose of directive.
Left to national court to apply interpretative duty, but said ‘any sanction that was imposed by the national court had to be such as to guarantee real and effective judicial protection of the right to equal treatment under Directive’ and real deterrent effect on employer.
Alfons Lütticke GmbH v Hauptzollamt Saarlouis
FACTS: Concerned Article 110 TFEU (prohibition on internal taxation measures which discriminate against goods from other Member States). At the time the Treaty was first agreed to, it also contained positive obligation to remove, by 1 Jan 1962, any existing measures that discriminated.
Van Duyn v Home Office
FACTS: Dutch scientologist offered work as a secretary at Church of Scientology HQ in London. Refused entry into the UK. Article 45 TFEU: free movement of workers, subject to derogations. Directive 2004/38 describes scope of measures taken by Member States to derogate. Van Duyn sought to rely on article 3 of Directive – any measure shall be ‘based exclusively on personal conduct of individual concerned’. Held that the directive could have direct effect.
Regulations are capable of being directly effective: ‘Regulations are directly applicable and therefore by virtue of their nature capable of producing direct effects.’
Decisions are capable of being directly effective: ‘It would be incompatible with the binding effect [of] decisions… to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision.’ (But only against party to whom decision was addressed - Carp Snc di L. Moleri e V. Corsi v Ecorad Srl).
Franz Grad v Finanzmant Traunstein
Regulations are capable of being directly effective. (Matter put beyond doubt.)
Politi s.a.s. v Ministry for Finance of the Italian Republic
Regulations can have direct effect not only vertically but also horizontally.
Antonio Munoz y Cia SA v Frumer Ltd
Regulations must still comply with the Van Gend criteria to have direct effect. Example of 2 regulations not satisfying criteria therefore not having direct effect.
Azienda Agricola Monte Arcosu Srl v Regione Autonoma della Sardegna
Decisions are only capable of having direct effect against the party to whom the decision was addressed (because only binding on that party).
Carp Snc di L. Moleri e V. Corsi v Ecorad Srl
Recommendations and opinions are not binding therefore no direct effect possible.
ECJ effectively recognized that even recommendations and opinions can influence the interpretation of domestic law (i.e. have indirect effect).
Grimaldi v Fonds des Maladies Professionnelles
Provided new rationale for directives being capable of having direct effect (that convinced the previously rebellious courts): ‘A Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations the directive entails.’
A Directive can only have direct effect once the deadline for implementation has passed, thereby making it unconditional and satisfying this part of the Van Gend criteria.
Pubblico Ministero v Ratti
Ratti logic, that a Member State cannot rely, as against individuals, on its own failure to perform the obligations that the directive entails, applies equally where there’s merely partial or incorrect implementation (rather than blatant failure).
Verbond van Nederlandse Ondernemingen (VNO) v Inspecteur der Invoerrechten en Accijnzen
Even where a directive is completely and correctly implemented, an individual may seek to directly rely on a (clear, precise and unconditional) directive ‘where the national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by the directive’.
Marks & Spencer plc v Commissioners of Customs & Excise
No horizontal direct effect due to the nature of directives binding ‘each Member State to which it is addressed’ (Article 288 TFEU).
Doesn’t matter about the capacity in which the State is acting, be it public authority or employer. Court responded to argument that the State employees were thus in a better position by saying that the distinction would have been avoided if the Directive had been implemented correctly in the first place! (Not really an answer…)
Health authority evidently considered to be an emanation of the state (although no clear criteria set out here for establishing an emanation of the state).
Marshall v Southampton and South West Area Health Authority (Teaching) (No 1)
The ECJ responded to AG Lenz by saying that the effect of extending the principle… to the sphere of relations between individuals would be to recognise a power in the Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations.’
Dori v Recreb Sri
Tax authorities evidently considered an emanation of the state (pre-bipartite + -tripartite tests).
Becker v Finanzamt Münster-Innenstadt
Local authorities evidently considered an emanation of the state (pre-bipartite + -tripartite tests).
Fratelli Costanzo Spa v Comune di Milano
Constitutionally independent police force responsible for the maintenance of public order and safety evidently considered an emanation of the state (pre-bipartite + -tripartite tests).
Johnston v Chief Constable of the RUC
