Direct Effect

key point of Van Gend en Loos?

broader formulation of DE derives from this case

• referred to the capacity of a provision of EU law to be invoked before a national court

what did the ECJ hold in Van Gend en Loos?

article 12 should be interpreted ‘as producing direct effects and creating individual rights’

• (implies that the latter follows from, but is not nec a condition for, the former)

key point of Defrenne v Sabena?

Treaty provisions have horizontal DE, i.e. they can be exercised against private parties by private parties

what was held in Defrenne v Sabena?

• rejected argument that Article 119, which stipulated that MS should ensure the principle of equal pay for equal work, could be relied upon only as against the state

• the treaty provision was mandatory in nature and extended to contracts between individuals as well as collective agreements

key points of Van Duyn?

• Directives can have vertical DE

• the fact that a treaty provision allows for derogation does not deprive it of DE since derogations are subject to judicial control

facts of Van Duyn?

• VD claimed that the Home Sec infringed her right under article 45 TFEU and Free Movement of Workers Directive by denying her the right to work at the Church od Scientology

• the directive set out that a public policy provision had to be ‘based exclusively on the personal conduct of the individual concerned’

• UL Gov argued that the directive had no vertical DE

what did the ECJ hold in Van Duyn?

Directives can in principle have DE - 2 reasons:

1. functional: directives are binding and will be more effectively enforced if individuals can rely on them

2. textual: now article 267 TFEU allows national courts to refer questions concerning any EU measure to the CJEU, including directives, and this implies that such acts can be invoked by individuals before national courts

key point of Ratti?

directives have DE when unconditional and precise and only when their implementation period has expired

what reason did the ECJ in Ratti give for holding that directives could in principle have DE?

estoppel argument:

• MS were precluded by their failure to implement a directive properly from refusing to recognise its binding effect in cases where it was pleaded against them

> the MS committed a wrong by failing to implement the directive into national law, and it could not rely on that wrongdoing to deny the binding effect of the directive after the date for implementation

key point of Marshall?

EU laws have direct effect against gov institutions, whether acting in a public or private capacity

facts of Marshall?

• Marshall was an employee of an Area Health Authority in the UK

• she was dismissed at the age of 62 having passed the normal retirement age of 60 for female employees

• in contrast, normal retirement age of males was 65

• she alleged sex discrimination contrary to the Equal Treatment Directive

• Gov argued that the directive could not be relied upon against the AHA as:

> the AHA was acting in a private capacity as an employer, and

> directives do not have HDE

what did the ECJ hold in Marshall?

the DE of a directive could be pleaded only against the state, but not against an individual

key point of Faccini Dori v Recreb?

Directives have no HDE (cannot be enforced against individuals and private parties in national court)

key point of Foster v British Gas?

acts of ‘emanations of the state’ can be challenged in national court for compatibility with EU directives

what was held in Foster v British Gas?

a private party may rely on a directive against a body that is non-standard but still classed as the State

• many nominally private entities (agencies, public services) count as emanations of the state

key point of Sabine von Colson?

directives have indirect effect, i.e. national courts must interpret national laws to achieve compatibility

what was held in Sabine von Colson?

national courts are required to interpret domestic law as far as possible in conformity with directives

• applies in both vertical and horizontal disputes

• does NOT impose obligations directly from the directive; instead, it imposes an obligation on the judge to reinterpret national law

• (the ‘as far as possible’ limit is malleable and sometimes yields de facto HDE)

key point of Marleasing SA v La Comercial?

directives can have indirect effect in a horizontal setting

key points of Pfeiffer?

• directives do not have HDE, but they do have horizontal INDIRECT effect (i.e. national courts must interpret national laws in line with EU law in a case against a private individual or body)

• indirect effect applies not only to measures implementing EU law but to the national legal system of a MS as a whole

key point of Adeneler?

indirect effect of a directive arises only when the transposition period expires but MS must not take measures contrary to directive during implementation period

key point of Impact?

indirect effect of EU law does not require courts to give retrospective effect to implementing legislation if contrary to domestic rules of interp

key point of Dansk Industri?

national legislation can be set aside in a horizontal context by a directive if the directive gives concrete expression to a general principle of EU law

key points of Mangold?

• directives that concretise a general principle of EU law can de factor have HDE through the general principle

• non-discrimination on grounds of age is a general principle of EU law

how did the Court in Mangold effectively circumvent the ban on HDE?

by holding that individuals may invoke the general principle of non-discrimination on grounds of age horizontally, even though a directive inspired the content of that principle

key points of Seda Kucukdeveci?

• affirmation of principle in Mangold that a general principle of EU, if concretised by a directive, can have HDE

• in contrast to Mangold, this case suggests that for the general principle to take effect, the implementation period for the directive must first expire

key point of CIA Security International SA v Signalson SA and Securitel SPRL?

directive on national standards rendered national provisions unenforceable even in a horizontal dispute

key point of (Wells) v SoS for Transport, Local Gov and the Regions?

the fact that a private 3rd party will suffer adverse effects for its rights cannot prevent an individual from invoking the provisions of the Directive against the MS

who argues that the case law of the ECJ does NOT allow us to construct a coherent picture of when EU norms should be effective before national courts?

Leczykiewicz

what is the doctrine of consistent interpretation?

national courts are required to interpret national law in the light of the wording and purpose of the directive in order to achieve the result of its implementation

what is another term for the doctrine of consistent interpretation?

indirect effect

Leczykiewicz: Pfieffer judgment shows that the doctrine of consistent interpretation enables _______________________________________________________________

an employee to rely on an EU right created by a Directive against another private party to alter the content of an employment contract

• the effect is arguably achieved by means of interp of nat law, but it is indistinguishable from ascribing the Directive HDE

Craig: in light of Pfeiffer, it is no longer tenable to ___________________________________________________________

deny Directives HDE - legal certainty would ne enhanced by abolishing the Marshall prohibition

Leczykiewicz argues that CIA Security caused problems at which 2 levels?

1. conceptual level: difficult to reconcile with the logic of Marshall and Faccini Dori judgments, which aimed at protecting individuals from the effects of unimplemented Directives

2. practical level: unlimited invocability of Directives, leading to exclusion of application of incompliant national rules, had undesirable consequences

what incoherencies do Leczykiewicz identify in the context of Directives?

• if legal certainty prevents Directives from imposing of themselves obligations on individuals, why doesn’t it prevent other negative consequences for individuals, e.g. when the Directive’s application leads to removal of a liberty, power, or right under national law?

• if legal certainty is the most important concern in horizontal cases, how can one explain the v extensive effect of the obligation of consistent interp?

• if individuals should not be imposed obligations by EU law against the wording of national law, why is such an effect permitted where the obligations is contained in a general principle of EU law or a Charter right?

when can an individual rely on an EU Directive against the State? (VDE)

if:

• the directive is clear, precise, and unconditional

• the implementation deadline has passed, and

• the Member State has failed to implement it properly

Leczykiewicz: the justificatory force of the estoppel argument has led some authors to the conc that problematic judgments e.g. CIA Security, Unilever, Marleasing, Pfeiffer, or Mangold, might be explained as ________________________________________________

disguised vertical cases - as cases with a public law dimension arising from the state’s administrative failure

Leczykiewicz: while it is true that individuals should not be discouraged from exploiting the fact of a MS’s breach to their advantage, it CANNOT be assumed that _________________________________________

every employer who relies on incorrect national law is doing so with the intention of benefitting from the fact that the state failed to fulfil its obligations under EU law

who argues that reasons for denying HDE are unconvincing?

Craig

what was the basic policy rational for denial of HDE of Directives in Marshall?

textual argument:

• according to article 249 EEC Treaty, the binding nature of a directive … exists only in relation to ‘each MS to which it is addressed’

• ECJ: followed that a directive may not itself impose obligations on an individual and that a provision of that directive may not be relied upon as such against such a person

which mechanisms can be said to undermine the ‘rule’ that Directives do not have HDE?

• indirect effect

• broad conception of the ‘State’

• incidental effect

• general principles and charter rights

why do Craig and De Burca argue that the rational in Marshall for not allowing HDE of Directives (that this would circumvent article 288 TFEU) is unconvincing?

• Article 288 merely signifies that a MS is bound by a Directive only if mentioned therein as being bound - it says nothing as to whether, if a particular MS is bound, the Directive might also impose an obligation on a private individual

• the court’s textual fidelity here contrasts with its approach to the direct effectiveness of certain Treaty Articles which are also expressly addressed only to the MS, and yet have been deemed horizontally directly effective (e.g. in Defrenne)

facts of Pfeiffer?

• concerned compatibility of German law w/ Working Time Directive

• German law permitted the extension of the weekly working time beyond 48 hrs, but ECJ concluded that the German leg was incompatible w/ the Directive

• yet for the Directive to affect individual contracts, Cs needed to be able to rely on it against their employer

• in order to avoid overruling Marshall by allowing the Directive HDE, the Court focused on the doctrine of consistent interp, holding that nat courts must interpret nat laws in line with EU law in a case against a private party

what approach does AG Jacobs advocate for?

abolish the Marshall prohibition and hold the provisions of a Directive to have HDE in approp circs

facts of CIA Security?

• CIA Security applied to the Belgian courts to try to get Signalson and Securitel to stop engaging in what CIA alleged were unfair trading practices

• CIA’s claim was that Signalson and Securitel had libelled them by claiming that CIA were marketing an alarm system which had not been approved by the Belgian authorities, as required by Belgian leg

• CIA admitted that they had not obtained the approval required by the Belgian leg, but claimed that this Belgian leg itself had failed to comply with EU law, as the leg had not been notified to the Commission as a directive required it to be

what is the effect of CIA Security?

private parties do in fact suffer incidental consequences from the State’s failure to comply with a Directive

• difficult to reconcile with the logical of Marshall, which aimed at protecting individuals from the effects of unimplemented DIrectives

facts of Adeneler?

Greek court made a prelim reference asking when the duty to interpret domestic law as far as possible in conformity with a directive begins

facts of Marleasing?

• Marleasing alleged that La Comercial were a sham company set up with the purpose of defrauding creditors

• Marleasing sought a declaration that La Comercial as a company was a legal nullity, void for ‘lack of cause’

• Spanish company law did not have a determinate answer to the question of whether a company could be declared void for lack of cause

• however, lack of cause WAS a ground for nullity in Spanish contract law

• arguably, absent the existence of the unimplemented directive, the grounds of nullity of contract law could have been applied by analogy

• an EU directive existed but was unimplemented in Spain - it did NOT include lack of cause in its list of grounds for the nullity of companies

CJEU in Marleasing: it follows that the req that national law must be interpreted in conformity with the Directive ____________________________

precludes the interpretation of provisions of national law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those exhaustively listed in [the Directive]

what are some things to note about indirect effect?

• it is available in horizontal situations

• extends to law which pre-dates and post-dates directives

• extends to interpreting other areas of law which would be argued by analogy

when, in Luciano Arcaro: was it held that the obligation of the national court to refer to the content of the directive when interpreting the relevant rules of its own national law reaches a limit?

where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed, or where it has the effect of determining or aggravating, on the basis of the directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive’s provisions

which case could be argued as pulling back from Marleasing?

Arcaro - ‘special case’ of aggravating criminal liability

what did AG Jacobs state in Centrosteel?

the statement [in Arcaro] might appear to impose drastic limitations on the principle of interpretation of national law in accordance with Community directives

• however, the statement should NOT be read in that way

• it was made in the context of criminal proceedings

• difficult to reconcile with the Court’s prior and subsequent case law

facts of Centrosteel v Adipol?

concerned a commercial agency contract between Centrosteel and Adipol

• Centrosteel sought to enforce this contract and obtain payment of commission owed to them

• Adipol disputed contractual liability on the grounds that the contract was void, as Centrosteel had failed to comply with compulsory registration procedures required under Italian law

• Centrosteel had failed to comply, BUT the relevant Directive existed and only required that such contracts be in written form to be enforceable

what did the ECJ hold in Centrosteel?

• in those circs, the answer to be given to the questions referred must be that the Directive precludes national legislation which makes the validity of an agency contract conditional upon the commercial agent being entered in the approp register

• the national court is bound, when applying provisions of domestic law predating or postdating the Directive, to interpret those provisions, so far as possible, in light of the wording + purpose of the Directive

what are some things to note about the judgment in Centrosteel?

(1) ‘precludes’

(2) the Court of Justice claim that this is so via the national court’s interpretive obligation

can this case really be an example of indirect effect, of interpretation?

what was held in Bellone v Yokohama?

both ECJ and AG Jacobs regard it as significant that in a case decided prior to Centrosteel, the ECJ pronounced that the relevant Directive precluded a national rule which made the validity of an agency contract conditional upon the commercial agent being entered in the approp register,

AND

that, following this decision, the Italian Courts had changed their interpretation of the law requiring those registration reqs, so that failure to comply with them did NOT entail that the resulting contracts were void

what does Dickson observe about the decision in Centrosteel?

at some point, the national legal situation re. this issue in Italy (legislation + case law interpretation thereof) seems to have gone from contracts concluded by agents failing to comply with registration reqs being void, to them NOT being void, and to have done so via the operation of an unimplemented directive operating cases between private parties

the ECJ in Pfeiffer concluded that the principle of interpretation in conformity w/ Community law requires _________________________________________________

the referring court to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law, to ensure that the Directive is fully effective, in order to prevent the max weekly working time laid down in the directive from being exceedd

the ECJ in CIA Security held that the Directive in question was to be interpreted as meaning that __________________________________________________________________

individuals may rely on it before the national court which must decline to apply a technical regulation which has not been notified in accordance w/ the directive

in CIA Security, what did failure to notify constitute?

a procedural defect

• rendered the national rule unenforceable against individuals

in CIA Security, the national rule was ___________________________________________

excluded or precluded, in virtue of its technical defect

what does Pablo Figueroa Regueiro argue?

that substitution is the line between DE and indirect effect/incidental effect

how does Dickson criticise Figueroa Regueiro’s ‘substitution’ argument?

may be a good theoretical distinction, but does it matter in practice? same effect on the parties.

facts of Unilever v Central Food?

• Central Foods ordered a consignment of olive oil from Unilever

• when it arrived, CF refused to pay as they claimed the olive oil was not labelled in the way required under Italian law

• the Italian labelling law in question HAD been notified to the Commission as required by the Directive, BUT it had been adopted BEFORE it should have been

> in contravention of the ‘standstill clause’ in the directive requiring national authorities to wait for a certain period of time before adopting rules

what 2 features did AG Jacobs argue distinguished Unilever from CIA Security?

1. the question of the inapplicability of the technical reg arises in proceedings between individuals concerning rights + obligs within a CONTRACTUAL REL and not in proceedings between competitors on the basis of national rules prohibiting unfair trading practices

2. in Unilever, in contrast to CIA, the Italian law was correctly notified to the Commission

• Italy’s infringement lay not in a failure to notify but in a breach of the standstill reqs imposed by the directive

did the CJEU in Unilever go with or against CIA Security?

with

what happened in David Smith v Patrick Meade?

disapplication of contrary national law was not allowed where national law was contrary to the SUBSTANCE of a directive

(contrast to the ‘procedural’ breaches in CIA and Unilever)

what does AG Jacobs argue in Unilever in relation to the problem of legal certainty in relation to incidental effect?

individuals may not know that their MS has failed to notify/comply with standstill reqs, and there is no obligation on the Commission to publish the fact of such failures

facts of Sapod Audic v Eco-Emballages SA?

• SA entered into a contract with EE to the effect that EE would operate a waste disposal system for SA, and in return for using that system SA would be granted use of a mark on their products indicating that they had complied with their obligations under French law

• SA wanted to repudiate the contract on the basis that the French law requiring firms to enter into some kind of waste disposal scheme in return for a mark stating their compliance with the same had not been notified to the Commission as required by the relevant directive

what did the Court of Justice hold in Sapod Audic v Eco-Emballages?

seemed to take an interpretive turn - put several qs back to the national court to decide on the facts of the case, inc:

i) whether the French national rule was a technical reg within the meaning of the directive

ii) if it was, what remedy this mandated

what was held in relation to legal certainty in Sapod Audic v Eco-Emballages?

• the principle of legal certainty prevents directives from creating obligations for individuals

• on the other hand, mere adverse repercussions on the rights of 3rd parties do not justify preventing an individual from invoking the provisions of a directive against the MS concerned

what were the 2 issues in Mangold?

1. horizontal case

2. Germany’s date by which they had to implement the directive had NOT yet passed when the contract at issue was concluded; and German law at issue in this case was enacted BEFORE the date of implementation of the directive had expired

facts of Seda Kucudeveci?

• K was employed by Swedex for 10 years, from age 18-28

• when she was dismissed she was only given notice as if she had worked for them for 3 years

• this was bc German law provided that periods of employment before the age of 25 were not to be taken into account in calculating the period of notice

what did the Court of Justice hold in Seda Kucukdeveci?

1) reiterated the bar on HDE of directives

2) mentioned duty of consistent interp, but acknowledged that national court does not think there is room to interp the nat measure in line in this case

3) therefore, nat court must DISAPPLY any piece of nat law contrary to principle of non discrimination on grounds of age, even in horizontal situations

in Kucukdeveci, the principle of non discrimination on grounds of age _____________________________________________________

PRECLUDES German law at issue in the proceedings

what did Davide Smith v Patrick Meade concern?

whether national law contrary to the substance of a Directive can be disapplied in a horizontal situation with no general principle standing behind the Directive

what is the test in Foster v British Gas as held in [18]?

a directive could be relied on against organisations or bodies which were subject to the authority or control of the State

OR

had special powers beyond those which result from the normal rules applicable to relations between individuals

what was held in Foster v British Gas at [20]?

a body which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under control of the State

AND

has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included among the bodies against which the provisions of a directive capable of having DE may be relied upon

how has the Foster test been criticsed?

• too vague

• too many criteria

• uncertain how to apply

did the CJEU in Farrell hold that the Foster criteria are conjunctive or disjunctive?

disjunctive

facts of David Smith v Patrick Meade?

• Smith was travelling in the back of a van which was not designed for or fitted with seating accommodation for passengers

• Van driven by Meade

• accident occurred, Smith injured

• Meade’s insurance policy excluded cover for passengers in the back of a van where there was no seating, and did so based on the exception to this effect in Irish law

what did the Court of Justice hold in David Smith v Patrick Meade?

a national court, hearing a dispute between private persons, which finds itself unable to interpret provisions of its national law in a manner that is compatible with a Directive, is not obliged, solely on the basis of EU law, to disapply the provisions of its national law which are contrary to those provisions of that directive

what did the Court of Justice in David Smith v Patrick Meade hold in relation to CIA Security and Unilever?

what was at issue in CIA Security and Unilever were particular situations, namely the adoption of technical regulations that did not comply with procedural obligations concerning notification and delayed adoption

in David Smith v Patrick Meade, it was held that if the Court cannot interpret Irish law in conformity w/ the EU directives because e.g. it is contra legem, then __________________________________________________________________________

it is not obligated to disapply national law which is contrary to the SUBSTANCE of the directives in a case between private parties

Dickson asks whether the Smith v Meade decision is reconcilable with the ____________________________________________________________

strength of the interpretive obligation required by the CJEU in a horizontal in Pfeiffer which appeared to amount to a duty to disapply contrary national law, albeit achieving this through some sort of ‘interpretation’?