Enforceability in National Court - Direct/Indirect/State

Question 1

Van Gend

Answer 1

Dutch company obliged to pay customs tax; ECJ held that even if Article 12 TFEU did not make express reference to individuals, it was still directly effective
RATIO: A Treaty article will be directly effective if it is 1) sufficiently clear and precise 2) unconditional and 3) leaves no room for discretion in implementation by Member States
Where there is a conflict with earlier domestic law, EU law will be given supremacy.

Question 2

Defrenne v Sabena

Answer 2

Male stewards employed by Sabena were paid more than woman stewards despite there being no difference in their duties; Defrenne contested this as being in violation of Article 157 TFEY; held Treaty article was directly effective as it satisfied the Van Gend criteria.
RATIO: Article 157 TFEU has direct horizontal and vertical effect.

Question 3

Leonesio

Answer 3

Regulation required Member States to make cash payments to farmers who phased out dairy cattle; Leonesio did this but the Italian Ministry of Agriculture refused to pay the cash premium; ECJ held that the regulation had direct vertical effect
RATIO: Regulations ‘produce immediate effects, and [are], as such, apt to attribute to individuals rights which national courts must uphold.

Question 4

Antonio Munoz Cia SA v Frumar

Answer 4

Established that the defendants had applied a false variety name to their grapes in violation of a Regulation that this was actionable on the part of a competitor
RATIO: Regulations have direct horizontal effect.

Question 5

Van Duyn

Answer 5

Van Duyn refused entry to the UK due to her involvement in the Church of Scientology; invoked Article 45 TFEU and Article 4 Directive 64/221 (which states that decisions must be based solely on personal conduct of persons concerned); held Directive had direct vertical effect
Ratio: Directives have direct vertical effect where the terms are clear, precise and unconditional (other criteria must also be met)
Current association with a group of body can constitute ‘personal conduct’ for the purposes of the Directive then in place and now Article 27(2) Directive 2004/38; the activities of the group or body need not necessarily be illegal for a Member State to deny entry to or expel its members.

Question 6

Marshall

Answer 6

Marshall forced to retire at 62 whereas men could work until 65; brought claim against her employer, who was part of NHS, based on the Equal Treatment Directive; held that employer as a public authority as part of NHS and direct effect could be relied on (on condition of Ratti and Van Gend criteria being met)
RATIO: Directives have vertical direct effect and can be enforced against public authorities.

Marhall No.II – 2nd reference to ECJ re amount of compensation – English law had an upper limit whereas treaty didn’t. again successful as able to rely on vertical direct effect.
Advocates General viewed law as ‘odd’ and unfair as it gave greater rights to public sector workers than private sector. Concerned re basic principle of equality before the law

Question 7

Duke

Answer 7

Not long after Marshall, another woman in exactly same position sued her employers in English courts for the same reason – forcing her to retire earlier than a man.
Duke failed in her claim as her employer was not the state or emanation of the state so claim was horizontal and could not succeed. Unable to rely on direct effect of directive even though facts were virtually identical to Marshall.

Question 8

Paola Faccini Dori

Answer 8

Dori relied on a Directive to withdraw from an English language course (Directive allowed consumers to cancel contracts within 7 days if contract made away from business premises); ECJ held that Dori could not rely on Directive against a private body
RATIO: ECJ ruled Directives do not have horizontal direct effect
Note: Advocate General criticized this on grounds of legitimate expectations of those seeking to rely on EU law. – old directives could not be said to be in the public domain – not fair to rely on them horizontally. However, new directives since 1st nov 1993 have to be published and therefore should all be capable of both vertical and horizontal direct effect assuming satisfy van gend.

Question 9

Vaneetveld

Answer 9

Mrs Vaneetveld, following an accident, claimed her husband’s insurance; insurance company paid out under impression they were no longer married, but later found they were merely separated; company tried to reclaim money, which was allowed under Belgium law, and Mrs Vaneetveld tried to rely on a Directive to protect her
RATIO: ECJ ruled Directives do not have horizontal direct effect
Note: Advocate general criticized this on grounds that public bodies should not be disadvantaged to those in the private sector and that this could affect the consistency/fairness between business in different Member States. Main concern was that the law lacked uniformity.

Question 10

Van Gend

Answer 10

Sufficiently clear, precise and unconditional to have direct effect

Question 11

Ratti

Answer 11

Ratti invoked two Directives as a defense against a criminal prosecution by Italy; time limit for one of the Directives had expired, but not the other; held that Ratti was only able to rely on the one for which the time limit had elapsed
RATIO: For Directives to have direct vertical effect, the date of their implementation must have passed

Question 12

Foster

Answer 12

Female employees forced to retire earlier than male employees; British Gas was nationalized at the time; ECJ held that British Gas was an emanation of the state and therefore a Directive could be relied on against it.
RATIO: Directives can be relied n against organisations or bodies which 1) are under a statutory duty to provide a public service, 2) are under state control, and 3) have special powers. Bodies which meet this criteria will be considered emanations of the state.

Question 13

Farrell v Whitty

Answer 13

Whitty crashed his van at speed whilst drunk and uninsured. 4 passengers sitting in rear of van not in seats and unrestrained, one of them, Farrell was killed. Her Sister was injured and sought compensation from MIB. Under Irish law at the time, there was no obligation for a driver to have insurance to cover passengers in a part of the vehicle that was not designed and constructed with seating accommodation, and so MIBI was under no liability under Irish law to compensate her. Question arose whether Ireland had complied with European Directives.
Could victims of uninsured drivers claim against the Motor Insurers Bureau (MIBI) in cases where European directives on the scope of motor insurance had been inadequately implemented into UK law? Or did a victim have to sue the state in a Francovich action for damages for breach of the state’s duty under EU law to implement the directive correctly?
RATIO: A body does not need to meet all 3 Foster criteria to be an emanation of the State; instead, it is probably reasonable to conclude that a body will be an emanation of the state if satisfies 2 criteria outlined.
• The state has delegated to it a public interest task (a variant of the public service condition); and
• It satisfied either the second (SC) or third (SP)

Question 14

Doughty

Answer 14

Rolls Royce was wholly owned by government but operated as a ‘commercial undertaking’ which traded with the government on an ‘arm’s length’ commercial basis
RATIO: A body will not necessarily be deemed to be an emanation of the State where it lacks special powers and has no statutory duty, even if it is wholly owned by the government.

Question 15

Griffin

Answer 15

South West Water Services was a privatized water utility: accepted that they had a statutory duty and special powers but argued they were not under state control; held to be a emanation of the state.
RATIO: A body does not have to be state controlled to be an emanation of the state, it is sufficient that the industry in which it operates is subject to State regulation. (Note: not confirmed by ECJ)

Question 16

NUT v St Mary’s

Answer 16

School was a Church of England voluntary-aided school; held to be an emanation of the state because it voluntarily accepted state aid and entered the state education system.
RAITO: It is not necessary for a body to satisfy all the 3 Foster criteria to be an emanation of the state (Note: not confirmed by ECJ)

Question 17

Von Colsen

Answer 17

2 female social workers were refused job in a German State prison due to their sex; invoked Art. 6 Equal Treatment Directive which provided that Member States must ensure that victims of sex discrimination obtain an effective remedy (not provided for by German legislation) (note: Art. 6 did not satisfy criteria for direct effect). German court used Art. 267 ref for ECJ to advise.
RATIO: National courts are under the obligation to interpret national implementing legislation in such a way as to ensure that the objectives of the Directive it is intended to implement are fulfilled. This is known as the doctrine of indirect effect. Purposive approach.

Question 18

Marleasing

Answer 18

Claimant brought proceedings to have constitution of Defendant company declared null and void; matter was governed by a Directive which should have been implemented in Spain but no steps had been take towards implementation; ECJ ruled that the Spanish Civil Code had to be read to give effect to the terms of the directive
RAITO: Non-implementing legislation should be read to give effect to the terms of a Directive, in so far as it is possible to do so.
(Note: this effectively removes the distinction between non-implementing and implementing legislation for indirect effect, barring that non-implementing legislation can only have indirect effect where it can be read in such a way.

Question 19

Pickstone v Freemans

Answer 19

Female warehouse workers were seeking same rate of pay as men who were doing a different job but of equal value; Equal pay Act, as amended by the 1983 UK regulations, only focused on equal pay for equal work; HL interpreted these regulations against their literal meaning to include ‘of equal value’.
RATIO: UK courts will interpret national legislation so as to give effect to the Directive it is intended to implement.

Question 20

Litster

Answer 20

UK regulations meant to implement a Directive dealing with protection of employees when company is sold to another; UK regulations protected workers who had been employed immediately before the transfer; in this case workers were dismissed one hour before; HL read into the legislation ‘immediately employed before the transfer or would have been so employed if he had not been unfairly dismissed prior to the transfer’.
RAITO: UK courts will interpret national legislation so as to give effect to the Directive it is intended to implement.

Question 21

Duke

Answer 21

National court hearing a case which falls within the scope of a Directive is required to interpret national law in light of the wording and purpose of that directive. No longer restricted to implementing national legislation.

Question 22

Webb

Answer 22

Webb employed by an EMO to cover for another employee’s maternity leave; she then discovered she was pregnant and was dismissed; unable to rely on Equal Treatment Directive because she was not employed by a public body; HL ruled that the national court was obliged to interpret national law (Sex Discrimination Act 1974) in light of EU legislation
RATIO: National courts are obliged to interpret national law in light of EU legislation where it is possible to do so.
Dismissing a woman because she is pregnant amounts to direct discrimination.

Question 23

Wagner Miret

Answer 23

Relevant Spanish law excluded higher management staff from protection, going against EU Directive; C could not rely on direct effect of Directive as it was not unconditional; indirect effect was also not possible because Spanish law could not be read so as to give effect to EU law because there was a clear conflict between the 2.
RATIO: Where there is clear contradiction between national and EU law, the doctrine of indirect effect will not apply and national law will be applied, even if it is in breach of EU law.

Question 24

Ex Parte Factortame

Answer 24

Spanish Fishermen started fishing in waters near the UK. Exercising free movement rights under Art. 49. UK felt Spanish were stealing ‘our’ fish. UK passed Merchant Shipping Act 1988 making Spanish fishermen’s actions illegal. Art. 49 was directly effective so had to take priority – English courts had to suspend operation of the English law and give priority to Art. 49.

Question 25

Luciano Arcaro

Answer 25

Arcaro was charged with a criminal offence under Italian legislation enacted to implement EU Directive; prosecuted for discharfing poisonous cadmium into river EU directive prohibited but Italian implementing law was incorrectly drafted and did not fully implement the relevant parts of the Directive; had legislation been correctly drafted he would have been guilty, but under the actual law he was not; Italian court made art 267 ref. ECJ ruled indirect effect should not apply to a criminal statute/liability – not possible to be found guilty of a criminal offence set out in a directive if that offence hasn’t been specifically implemented into national law.

Question 26

Francovich

Answer 26

Vertical claim was made against the Italian state for failing to produce a fund to help employees in insolvent companies; ECJ held that the Italian State could be held liable for failing to implement the Directive (stemming from Article 4(3) TEU)
RATIO: 3 conditions must be met in order for a claim for state liability to take effect:
a) The Directive confers a right to individuals;
b) That right is identifiable in the provision of the Directive; and
c) A breach in the implementation of the Directive has caused claimant to suffer loss

Question 27

Factortame

Answer 27

The UK parliament had enacted the Merchant Shipping Act 1988 which prevented Spanish fisherman from catching fish that formed part of the British fishing quota in breach of Article 45. Governments argued that Member States should not be liable to pay damages for breaches of directly effective EU law, as individuals could already enforce those directly effect EU rights before national courts.
Rejected by ECJ – extended Francovich from Directive to damages can be obtained from MS breach of any type of EU law. Also altered Francovich to require claimant to prove the MS breach was ‘sufficiently serious’

The state will be liable where:
 The breach infringes a rule of law intended to confer rights on individuals;
 The breach is sufficiently serious; and
 There is a direct causal link between the breach of the state’s obligation and the claimant’s loss

Question 28

Brasserie du Pecheur

Answer 28

The German government prevented the importation of French beer contrary to Article 34 TFEU; French brewery sued government for losses suffered

Question 29

Ex p British Telecom

Answer 29

British Telecom sued government for losses arising from incorrect implementation of a Directive; ECJ considered the following when determining whether breach was sufficiently serious; held that it was not, therefore British State not liable
RATIO: In applying Brasserie du Pecheur/Factortame, the court will consider the following questions when assessing whether a breach has been sufficiently serious:
1. was the directive sufficiently clear?
2. Had any guidance been given?
3. Had other Member States made the same mistake?
If there is a lack of clarity or guidance and several other States have made a similar mistake, the breach will not be sufficiently serious

Question 30

Dillenkofer

Answer 30

Germany failed to apply directive concerning holiday travel packages (and protection for buyers); case dealt with a total failure to implement the directive.
RATIO: A sufficiently serious breach occurs where a ‘Member state manifestly and gravely disregards the limits on the exercise of its powers’
Court also noted that where MS had no legislative choices to make & had little or no discretion when exercising its powers mere infringement of eU law might amount to sufficiently serious breach

Question 31

Kobler

Answer 31

 Where a court of mandatory jurisdiction has incorrectly failed to make ART. 267 reference, the breach will only be sufficiently serious if the failure to refer ‘ was made in manifest breach of ECJ case law’

Question 32

R v MAFF

Answer 32

UK’s Ministry of Agriculture was successfully sued for loss caused by failure to grant export licenses contrary to what is now Art. 35 TFEU