EU Direct/Indirect/Incidental Effect cases

Van Gend en Loos 

• the CJEU established that Treaty provisions have direct effect in national law i.e., they can be relied upon by individuals in national courts - A provision must be clear and unconditional to have direct effect 

• Unlike ordinary international law which is the law that happens between the state; EU law it creates rights + obligations for individuals  

• " the subjects of which comprise not only MSs but also their nationals." 

• The EU (like States) has democratic representation/legitimacy + authority to enforce laws + jurisdiction/subjects which ordinary international law does not have  

• The creation of the EU limited the sovereign rights of the states – ordinary international law does not have sovereignty 

Marshall

• the CJEU relied on article 288 TFEU, which states that directives are binding upon the Member States to which they are addressed, to assert that directives cannot impose obligations on individuals – unlike regulations

• the estoppel argument cannot explain why private parties that are classified as ‘emanations of the state’ such as the health authority employer in Marshall can face liability for non-compliance with a directive that it had no power to implement, merely because it was following national legislation incompatible with the directive.

Faccini Dori

the Court reinforced that granting HDE for directives would improperly allow the Union to impose obligations on individuals via a legislative instrument not intended for that purpose.

Ratti

proposed the estoppel argument -

• the MS should not be able to rely on its own failure to implement a directive to escape liability where an individual seeks to invoke their rights by relying on the directive’s binding effect on the MS. Logically this does not apply to individuals.

• Italian manufacturer prosecuted for breaching national packaging and labelling laws but his products complied with EU directives that Italy had not implemented within the deadline

Van Duyn

• allowed the claimant to rely on a directive against the UK Home Secretary because it otherwise would have been incompatible with the binding effect conferred on directives by the treaty

• allowing the MS to rely on its own failure to implement

Defrenne

• art 119 equal pay was held to apply all relevant agreements, including contracts between individuals - wouldn't work if private employers were not able to be held accountable 

• H/E treaty articles are textually addressed to MS but are granted HDE

• shows the textual distinction is selectively applied

Foster v British Gas

• test for an "emanation of the state": any body responsible for a public service, under state control, and possessing "special powers" beyond those of individuals.

• gender discrimination retirement age - Cs sought to rely o Equal Treatment Directive

Farrell

• determined that the conditions are not cumulative and do not require all the characteristics listed in the Foster judgment.

• C sought compensation from private body tasked with insurance claims

• shows the Court has adopted an increasingly broad interpretation of ‘state’

• can be an ‘emanation of the state’ if it performs a task in the public interest and has special powers.

Von Colson

• the CJEU held that national courts are required to interpret national law in conformity with directives to achieve their desired results.

• This duty applies during the transposition period before the MS has had to fully implement the directive into national legislation. (duty to not mess up in the meantime)

• The Court justified this duty by citing the principle of sincere cooperation from article 4(3) TFEU. By not imposing obligations directly on private parties, the court arguably preserves the distinction between directives and regulations

Marleasing

• presents that duty of harmonious interpretation applies to private parties, as the CJEU required the Spanish national court to interpret domestic legislation consistently with an EU Company Law Directive, to vindicate the rights of one private company against another.

• This led to a new position being adopted by Spanish company law via an unimplemented directive.

• As this has the same functional effect as direct effect it completely undermines the Ratti ruling that direct effect can only be applicable after the transposition period has expired.

Pfeiffer

• CJEU instructed the German national court to do “whatever lies within its jurisdiction” regarding the entire body of domestic law to give effect to the EU Directive.

• Consequently, the employee was enabled to rely on the EU right against the private employer to alter their employment contract and effectively change the national rules

• the position in Smith v Meade cannot be reconciled with that of the court in Pfeiffer, where the national law was effectively set aside albeit via indirect interpretation rather than direct disapplication

Smith v Meade

• affirmed that where conforming interpretation is impossible, national courts are not obliged to disapply conflicting national law in horizontal disputes.

• Irish insurance policy conflicted with EU Directive

• the position in Smith v Meade cannot be reconciled with that of the court in Pfeiffer, where the national law was effectively set aside albeit via indirect interpretation rather than direct disapplication.

• This is because the result for the parties presents that harmonious interpretation created a disapplication of national measures in all but name only.

CIA Security

• the CJEU held that an MS failure to notify a technical regulation under the relevant directive constituted a “substantial procedural defect,” rendering the national rule inapplicable.

• Even though the dispute was between two private firms, the directive ultimately determined the legal position of the parties

• The Court justified this as permissible on the basis that the directive did not create obligations ‘of itself’ but merely excluded a defective national measure.

Unilever Italia

• one party was forced to accept a delivery they had a contractual right to refuse solely because their Member State committed a procedural error

• Although the case was entirely horizontal, the directive again shaped the outcome. The Court maintained that this did not amount to HDE because it concerned only the invalidity of national law rather than the imposition of new directive-based obligations on the defendant

• showing ‘incidental/exclusionary effect’ - an unimplemented EU directive influencing the outcome of a legal dispute between private parties by rendering a conflicting national rule inapplicable 

Mangold

• Established that a General Principle of Law (GPL)—here, non-discrimination on grounds of age—can have HDE even before a directive's implementation period has ended. 

• it creates legal uncertainty because individuals cannot easily know which unwritten principles will override national law

Association de médiation sociale 

A Charter provision only has HDE if it is "sufficient in itself" to confer a right on an individual without further legislative implementation.

Bauer, Brossonn 

it suggests that even where a directive (which lacks HDE) exists, the underlying Charter right can be enforced directly.

Centrosteel

• Adipol refused to pay Centrosteel under an agency contract, arguing it was void because Centrosteel hadn't registered under Italian law. The Directive only required such contracts to be in writing. 

• Consistent interpretation can lead to the imposition of civil liability or obligations that would not otherwise exist in national law. 

Adelener

During the transposition period, MS have a "duty not to mess up"—they must refrain from measures that would seriously compromise the directive's objectives.

Impact

• Irish workers sought retrospective pay increases based on a directive that had been implemented late. Irish law generally prohibited retrospective application of legislation. 

• National courts are not obliged to adopt an interpretation that is contra legem (against the clear wording of national law). 

• Indirect effect is limited by general principles like legal certainty; a court cannot interpret national law in a way the language cannot bear. 

Dansk

• The national court must change its established case law if it is incompatible with a directive. 

• A national court cannot claim a compatible interpretation is impossible just because it has consistently interpreted the law differently in the past. 

• A Danish employee was denied a severance allowance because he was entitled to an old-age pension, a practice Danish courts previously held was lawful despite being age-discriminatory.

Wells

• Addressed "triangular situations" - the fact that a private third party will suffer adverse effects for its rights cannot prevent an individual from invoking the provisions of the Directive against the member state 

• Demonstrates that the Court already accepts indirect harm to private parties as a by-product of enforcing directives which is conceptually inconsistent with the legal certainty argument/justification for the prohibition on HDE of Directives