Indirect effect and state liability revision

Question 1

Von Colson & Kamann v Land Nordrhein-Westfalen

Answer 1

• 2 female prison workers rejected on basis of gender
• Breached Directive 26/207 stating equal treatment of genders
• Directive had been implemented but not fully
• German law regarding the directive was interpreted in line with the Directive

Question 2

Harz v Deutsche Tradax

Answer 2

• Indirect effect can be horizontally effective

Question 3

Marleasing v La Commercial

Answer 3

• Indirect effect is horizontally effective
• Any national law can be interpreted in light of EC legislation, not just legislation specific to the Directive
• National law can be interpreted ‘as far as possible’ to fit EC law, even if it is in direct conflict with the EC law
• High water-mark case

Question 4

Duke v GEC Reliance

Answer 4

• Uk case pre-dating Marleasing

- Only directive-specific legislation can be interpereted using IE

Question 5

Wagner Miret v Fondon de Garantira Salaria

Answer 5

• Reduced the scope of indirect effect
• Only MS law which can be interpreted to be EC compatible must be
• If MS law is directly in conflict with EC law then do not have to comply, though still likely to be a claim through State Liability
• Facts; Spannish case, Directive stating funds must be set up for employees of insolvent companies. Spannish law excluded executives, MS did not have to interpret law, but Wagner Miret did still have claim through state liability

Question 6

Webb v EMO Air Cargo

Answer 6

• British reaction to scope of indirect effect after Marleasing
• British courts must interpret UK law to fit EC law as far as possible, though cannot go directly against UK law

Question 7

Adeneler v ELOG

Answer 7

The implementation date of a directive must have passed to allow for indirect effect

Question 8

Evobus Austria GmbH

Answer 8

Confimrs Wagner Miret, where directly conflict between MS and EU MS law can remain, but will be liable to state liability

Question 9

Kolpinghuis Nijmegen BV

Answer 9

• The state cannot use indirect effect in criminal proceedings
• This is to ensure legal certainty

Question 10

Grimaldi v Fondes des Maladies Professionals

Answer 10

Indirect effect can be given to any type of Eu legislation

Question 11

Francovich v Italy

Answer 11

• Could not use DE as horizontal effect
• Could not use IE as no legislation in MS law
• Action brought under state liability
  Conditions of SL;
  
  • Legislation entails rights
  • Legislation includes identifiable rights
  • Must be causal link between un- enacted legislation and loss
• Francovich shows that SL only applies to directives (limited scope - later expanded)

Question 12

Brasserie du Pecheur (BDP)

Answer 12

• Broadened scope of SL to any EU legislation

- Does not have to be a total breach however must be a ‘sufficiently serious’ breach

Question 13

Factortame

Answer 13

Sl applicable to treaty articles

Question 14

Dillenkofer v Germany

Answer 14

Failing to implement a Directive in time counts as a ‘sufficiently serious breach’ for the purposes of the Brasserie du Pecheur test for state liability

Question 15

What factors constitute the BDP definition of ‘sufficiently serious’

Answer 15

Manifestly and gravely disregarded the limits of discretion;

• Clarity and precision of the rule breached
• Measure of discretion left to MS
• Whether breach was intentional/excusable
• Responsbility of community breach
• Extent to which MS adopted or retained national laws contrary to Community Law

Question 16

Ex p. Hedley Lomas (Ireland) Ltd

Answer 16

• Denied animal use contracts
• Purposefully breaking Eu law
• Did not interpret MS law with EU law as contrary
• State liability claim

Question 17

Ex p. B. T. PLC

Answer 17

• UK badly implemented a directive, no state liability because;
• Lack of precision in directive
• Good faith interpretation which was not obviously wrong
• Same interpretation made by other MS
• No guidance from the Community institutions