Supremacy, direct effect, indirect effect and state liability

Question 1

Van Gend en Loos v Nederlandse administratie derbelastingen

Answer 1

JUDGMENT: SINCE THE TREATY WAS CLEARLY INTENDED TO AFFECT INDIVIDUALS, IT MUST BE CLEARLY CAPABLE OF CREATING RIGHTS ENFORCEABLE IN NATIONAL COURTS.

• self-executing’/ justiciability
• Objective approach – the possibility for individuals to invoke and rely on binding EU law before national courts
• Subjective approach – the capacity of EU law to confer rights on individuals

Clear, Unconditional Prohibition, Not dependant on any further implementation by the member state

Question 2

Van Duyn v Home Office

Answer 2

Directives are directly effective

JUDGMENT: DIRECTIVES CAN BE DIRECTLY EFFECTIVE if they are sufficiently clear, precise and unconditional.

Question 3

Pubblico Ministero v Ratti

Answer 3

a 4th requirement - a directive cannot be directly effective until its implementation deadline has passed

Question 4

Defrenne v Sabena no. 2

Answer 4

Art.119 creates direct effects both vertically and horizontally.

Question 5

Van Gend en Loos v Nederlandse administratie derbelastingen

Answer 5

Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.

Question 6

Leonesio v Ministero dell’Agricoltora & delle Foreste

Answer 6

Regulations have direct effect

Question 7

SGB Belgium (C-367/09

Answer 7

by virtue of the very nature of regulations and of their function in the system of sources of EU law, the provisions of regulations generally have immediate effect in the national legal systems without it being necessary for the national authorities to adopt measures of application or without it being necessary for the EU legislature to adopt supplementary legislation

Question 8

Marshall v. Southampton and South-West Hampshire Health Authority

Answer 8

Marshall established for the first time that directives could not be enforced directly against individuals, unless the individual is a public body (or “emanation of the state”).

Question 9

Carp (Case C-80/06)

Answer 9

Decisions do not have Horizontal direct effect

Question 10

C-188/89 Foster v British Gas Plc

Answer 10

• Test for Public Body (Broad interpretation)

(1) A body made responsible by the state for providing a public service.
(2) Under state control
(3) With special powers for that purpose, beyond those normally applicable between individuals.

Question 11

C-91/92 Faccini Dori v Recreb Srl [1994] ECR I-03325

Answer 11

However, when applying provisions of national law, whether adopted before or after the directive, the national court must interpret them as far as possible in the light of the wording and purpose of the directive.

Question 12

Case 14/83 Von Colson v Land Nordhein-Westfalen

Answer 12

• -> Courts are required to interpret national law in the light of the wording and purpose of the directive. (as in relation to 4(3) TFEU)
  - -> Principle of harmonious interpretation

Question 13

Marleasing SA v La Comercial International de Alimentacion [1990] ECR I-4135

Answer 13

Huge increase in the scope of indrect effect

–> National provisions must not make it practically impossible or excessively difficult to exercise rights conferred by EC law.

In applying national law, whether the provisions concerned pre-date or post-date the Directive, the national court asked to interpret national law is bound to do so in every way possible in light of the text and the aimos of the Directive to achieve the results enviseged by it.

Question 14

01 Pfeiffer v Deutsches Rotes Kreuz

Answer 14

it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive

Question 15

C-105/03 Pupino Case

Answer 15

Indirect effect does not extend to contra legem interpretations. A national court has no duty to interpret national provisions against their clear meaning.

Question 16

Francovich,Bonifaci & others v Italian Republic [1991] ECR I-5357

Answer 16

Establishes the principle of state liability - a right to damages where a MS has breached EU Law, causing loss to the applicant

The court introduced the principle that citizens can sue the state for non-implementation of a Directive.

3 conditions must be met so as for liability to arise:

1. The directive must confer rights on individuals;
2. The contents of those rights must be identifiable in the wording of the measure;
3. There must be a causal link between the damage suffered and the failure to implement the directive.

Question 17

Brasserie du Pecheur [1996] ECR I-1029

Answer 17

New conditions for state liability

The conditions on Francovich are changed to

1. Union rule intended to confer rights on individuals is infringed;
2. The breach is manifest and sufficiently serious;
3. Direct causal link between the breach of the obligation and the damage sustained.

Question 18

R v HM Treasury ex parte British Telecommunications plc

Answer 18

Liability can arise as a result of incorect implementation of a directive. Breach not sufficiently serious as the directive lacked clarity.

Question 19

Kobler v Republik Osterreich [2003] 3 CMLR 28

Answer 19

Extended liability to a decision of a court of last instance

( intentional fault and serious misconduct )

Question 20

Targhetti del Mediterraneo SpA v Italy

Answer 20

Court of Justice appeared to extend liability somewhat further, it could not rule out liability for damaged caused by ‘manifest errors’ of interpretation of EU law.

Question 21

Article 258 TFEU

Answer 21

If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.

Question 22

Art. 288 TFEU

Answer 22

To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions

Question 23

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

Answer 23

Art. 288 TFEU

Question 24

A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

Answer 24

Art. 288 TFEU

Question 25

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

Answer 25

Art. 288 TFEU

Question 26

6/64 Costa v ENEL

Answer 26

EU LAW TAKES PRECEDENCE OVER NATIONAL LAW
- Introduction of the principle of “supremacy”
By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which […] became an integral part of the Member States and which their courts are bound to apply

Question 27

Solange I

Answer 27

JUDGMENT: EU LAW TAKES PRECEDENCE EVEN OVER THE CONSTITUTIONS OF THE MEMBER STATES.

Question 28

Simmenthal [1978]

Answer 28

JUDGMENT: EU LAW MUST BE FOLLOWED IN PREFERENCE TO ANY INCONSISTENT NATIONAL LAW.

Question 29

The legal effect of Directives: policy, rules and exceptions - Paul P. Craig

Answer 29

The textual conclusion is the foundation for subsequent case law, and therefore warrants
close scrutiny. There are three significant problems with this reasoning.
The first is that this textual approach is, as recognised by A.G. Jacobs,5 difficult to
reconcile with the judicial approach to certain Treaty articles, which are also explicitly
addressed to the Member State. Thus in the first Defrenne case the ECJ dismissed the
argument that Art.119 EEC could be relied upon only as against the state. It held that
since,

Question 30

The legal effect of Directives: policy, rules and exceptions - Paul P. Craig

Answer 30

The second difficulty is that the reasoning in Marshall is not self-evident in blackletter
textual terms.

Question 31

The legal effect of Directives: policy, rules and exceptions - Paul P. Craig

Answer 31

A normative argument to support the proposition that Directives should not have
horizontal direct effect is legal certainty. This was the rationale given in Wells,11 the
relevant paragraph of which has been cited in subsequent cases, albeit without specifically
mentioning legal certainty

Question 32

The legal effect of Directives: policy, rules and exceptions - Paul P. Craig

Answer 32

A rationale occasionally found for denial of horizontal direct effect of Directives is that it
would erode the distinction between regulations and Directives. The argument is however unconvincing.

Question 33

The legal effect of Directives: policy, rules and exceptions - Paul P. Craig

Answer 33

The net result can be expressed as follows: direct effect of Directives was developed in
part to ensure the effectiveness of Directives within EU law34; this was then tempered by
the textual limit expressed in Marshall; this textual limit contained the seeds of its own
later circumvention through inclusion of the qualifying pronoun “itself”

Question 34

The legal effect of Directives: policy, rules and exceptions - Paul P. Craig

Answer 34

The justification for the absence of horizontal direct effect of Directives derived from legal certainty is untenable.

The interpretative obligation may well rest on more general principles whereby national laws should if possible be interpreted as consistent with Treaty obligations. The reality is nonetheless that the interpretative obligation is significantly more problematic for individuals in terms of legal certainty than would be the case if there were horizontal direct effect of Directives.

Question 35

The direct effect of EU Directives: fresh controversy or a storm in a teacup?
Comment on Portgas

Answer 35

Nonetheless, the main question that follows after Portgás is whether a defaulting State can also seek
compliance with these obligations against its own emanations.

Leaving aside the reasoning used by the Court, it is clear that the ruling in Portgás may have far-reaching implications on a number of counts related to the enforcement of unimplemented directives. First, the judgment may bring the Foster test sharply into focus and have an impact on how it is applied.

Thirdly, looking at the outcome in Portgás , it is unavoidable to wonder whether this decision is yet another attempt to give greater effect to unimplemented directives that comes at the expense of legal certainty.

Question 36

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 36

Therefore, the general position applies in an undifferentiated manner to all state branches in international law, whereas, in EU law, there can permissibly be a tightening of the already strict conditions for liability in respect of judicial decisions. This article establishes this difference and
evaluates possible explanations.

The commentary to the Articles explains that, this approach reflects the treatment of the state ‘as a unity, consistent with its recognition as a single legal person in international law’

Question 37

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 37

BARCELONA TRACTION CASE
Tanaka proceeds to note that:
… on the one hand, a State by reason of the independence of the judiciary, in principle, is immune from responsibility concerning the activities of judicial organs; this immunity, on the other hand, is not of an absolute nature. In certain cases the State is responsible for the acts and omissions of judicial organs, namely in cases where grave circumstances exist. That is the reason why denial of justice is discussed by writers as a matter involving a State’s responsibility.14

Question 38

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 38

The starting point when considering state liability for judicial conduct in international law is now clearly the state unity theory. The theory requires that judicial conduct is unconditionally attributed to the state. It also suggests that the branch of the state from which the conduct emanates is immaterial when addressing the formally separate question of whether the conduct complained of amounts to breach of an international law obligation. In practice therefore, the conditions under which state responsibility can be incurred are the same for all state organs, as is the application of these conditions.

Question 39

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 39

The ECJ first recognized the possibility of Member State liability for decisions of final appeal courts
contrary to EU law in the Köbler case of 2003.34 In doing so, the ECJ drew upon the state unity theory,35 and went on to find that the objections raised by several Member States were not such as to outweigh the need to afford individuals the ‘possibility of rendering the State liable in order … to obtain legal protection of their rights’.36

Question 40

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 40

Traghetti del Mediterraneo SpA v Italy

Interpretation of Community legislation is part of the normal judicial function and liability would no longer be exceptional if it could arise whenever the interpretation was shown to be wrong - if only because the Court of Justice often adopts an innovative interpretation or one motivated by policy insights that would not be [sic] necessarily be available to the national court.

Question 41

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 41

The need to protect the authority of res judicata 44 was foremost among the reasons presented by
Member States for either not recognizing state liability at all, or only subject to restrictive conditions.

Question 42

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 42

It is axiomatic that the EU has integration objectives which are not shared by any regime of international law. In the present context, this difference exerts two influences which pull in opposing directions. First, it would have been astonishing if Köbler liability had not been recognized bearing in mind that whole-state liability is an established international law feature. Secondly, however, it would also have been surprising if Köbler liability had been recognized without any tightening of liability conditions. This is because, in order for EU integration to be successful, it must occur with reference to the legal traditions of the Member States.

Question 43

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 43

On the other hand, legal certainty concerns are more convincing as a basis for the exceptional nature of Köbler liability because of the strong resemblance between the initial proceeding culminating in a decision of a final appeal court, and the subsequent Köbler liability action.

The second explanation posited regard to the legal traditions of Member States as an aspect of European integration. State liability for final appeal court decisions is generally not recognized in domestic legal orders.

Question 44

State liability for judicial decisions in European Union and international law
Arwel Davies

Answer 44

Clarifications which soften liability criteria are not unprecedented in ECJ jurisprudence87 and the robustness with which the limitations in Italy were rejected in Traghetti 88 and Commission v Italy 89 might be viewed as an indication in this direction. The international law position could provide a supporting rationale for such a clarification just as it did in establishing whole-state liability.

Question 45

Is private enforcement of EU law through state liability a myth? – An assessment 20 years after Francovich by Tobias Lock*

Answer 45

CJEU very early on in Van Gend en Loos with regard to direct effect: The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by [Art. 258 and 259 TFEU] to the diligence of the Commission and the Member States.

Question 46

Is private enforcement of EU law through state liability a myth? – An assessment 20 years after Francovich by Tobias Lock*

Answer 46

This would suggest that in the overall picture of enforcement, Francovich type cases are only of limited importance.

Question 47

Is private enforcement of EU law through state liability a myth? – An assessment 20 years after Francovich by Tobias Lock*

Answer 47

The more discretion is given to a Member State, the less likely is the existence of a sufficiently serious breach.96 The court dealing with the question must, in the CJEU’s own famous words, take the following factors into account:

[…] the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.

Question 48

Is private enforcement of EU law through state liability a myth? – An assessment 20 years after Francovich by Tobias Lock*

Answer 48

The following discussion of German and English cases will show that national courts are reluctant to find a sufficiently serious breach. Only in evident situations like the complete failure to transpose a Directive into national law within the transposition period or where, in response to a preliminary reference, the CJEU has itself found a sufficiently serious breach will such a finding normally be made.

Courts will often rely on the CJEU’s decision in British Telecommunications104 in order to argue that the Member State’s error in transposing the Directive was excusable.

Question 49

Is private enforcement of EU law through state liability a myth? – An assessment 20 years after Francovich by Tobias Lock*

Answer 49

The conditions for state liability set by the CJEU are very hard to satisfy and have not been clearly
defined by the Court.

Furthermore, national courts will generally decide borderline cases in favour of the state. For these reasons, the attempt to empower citizens to enforce EU law by giving them a remedy in state liability has not been very successful.

Question 50

Is private enforcement of EU law through state liability a myth? – An assessment 20 years after Francovich by Tobias Lock*

Answer 50

In state liability proceedings, access to the remedy is severely limited by the strict
legal requirements set up by the CJEU. Furthermore, the interpretation of EU law by national courts
is not always uniform, a situation for which the CJEU is itself partly to blame. Undoubtedly,
however, Francovich is a successful tool for individual compensation. Where complainants have
managed to establish the conditions and got around limitations laid down in domestic law, such as
limitation periods, their claims will be successful.