Direct Effect Flashcards

Question

Direct Effect, Indirect Effect and Incidental Effect | *M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931; I – Which model is more conceptually alluring? A – Exclusion vs substitution

Answer 1

The distinction between exclusion and substitution = idea of legal vacuums: - in substitutionary situations, if a national rule is set aside on the basis of primacy without a suitable EU norm to replace it, this would leave a “gap” in the domestic legal system, so the threshold criteria for DE ensure that the relevant EU norm is apt to fill that gap - in exclusionary situations, there is no gap – the exclusion of the national norm does not lead to the direct and immediate application of the relevant EU norm, but the direct and immediate application of other provisions of domestic law capable of resolving the dispute in compliance with EU law

Answer 2

- Arbitrary: depends on the terms of the EU provision, the wording of the incompatible national law, the factual matrix where the dispute happened to have arisen o Example – a Directive containing the same right for workers to be consulted by their employer will sometimes manifest itself in exclusionary manners (ex. national legislation exempting small businesses) and sometimes in substitutionary manners (where the MS simply failed to pass any implementing legislation) ♣ NB [MI] essay point: this was before AMS! Article L1111-3 Code du travail is actually worded negatively (“Ne sont pas pris en compte dans le calcul des effectifs de l'entreprise…”) so according to Dougan would produce exclusionary and not substitutionary effects! So had AMS sued the state rather than suing the employer, incidental effect could have applied! ♣ And this isn’t one of the situations where it would be “unworkable” like Dougan says (infra) because excluding the mechanism would lead to the direct and immediate application of other provisiosn (in casu Article 1111-2 Code du travail and the articles on the minimum numbers of employees required for the different types of representative organizations (L2312-1, L2143-3, L2322-1) - Unworkable: sometimes can’t make a simple distinction between exclusion and substitution: o Example – Van Gend itself might be treated as a prime example of exclusion! o Example – an EU directive containing the right to market a product vs. national legislation simply prohibiting the marketing of that product… Looks like exclusion, but can you really say that the consequence of this is direct and immediate application of another rule of national law? More “honest” to say that it leads to the direct and immediate application of the Directive! - Formalistic: every exclusion implies some sort of substitution and vice versa o Example – in Faccini Dori, the direct and immediate application of EU legislation requiring a “cooling off period” leads inevitably to the exclusion of a national rule permitting enforcement of the contract In any case, one cannot deny that provisions of EU law have in fact reshaped the legal regime applicable to the given factual situation.

Answer 3

Are the threshold criteria really so alien to exclusionary situations? Exclusionary situations presuppose a conflict of laws, which in turn presupposes the existence of an identifiable EU norm against which we can judge the validity of relevant domestic rules, and this identification in turn presupposes some criteria capable of delimiting its actual scope and content (and thus rendering it justiciable). Are these, if not identical, at least equivalent to the DE threshold criteria? However, drawing a substitution/exclusion distinction might be pragmatically helpful in determining the degree of precision and unconditionality required.

Answer 4

Trigger model sees (1) EU and national law as separate legal systems, the identity of each being defined according to its own internal rules and processes, and (2) that the CJEU may insist on a hierarchical relationship. The “linkage” of these two paradoxical claims is DE, which makes EU law cognizable within national jurisdictions. Primacy model sees there being a unitary legal order embracing EU and national systems, where there is no inherent need for linkages to render EU law cognizable before national courts, because EU law is to be considered directly applicable (≠ effective), i.e. forming part of the domestic legal systems, from the moment of its inception, so that EU law is capable per se of expressing its hierarchical superiority over national law. Thus some authors explain the origins of the “primacy” model in certain legal traditions (ex. exclusion/substitution distinction = French administrative law (Prechal)) and in such national constitutional contexts where there indisputably exists a unitary legal order with a direct hierarchy between the constitution and subordinate legal instruments, the idea of a freestanding principle of supremacy works naturally, whereas a doctrine of DE rendering certain legal norms at all cognizable to the national judges would seem “superfluous, or inappropriate”. But this idea of a unitary legal order works difficultly in the EU because not all MSs accept it – the capacity for EU norms to manifest their supremacy in self-executing fashions, rendered cognizable to local judges for exclusionary purposes cannot be regarded as a fait accompli.

Answer 5

- Fancovich liability: can be activated by non-directly effective Treaty norms that are nevertheless intended to confer rights on individuals o Primacy model: difficult to accommodate because Francovich is not direct effect (because non-directly effective provisiosn can trigger it) but it’s also not supremacy (because national rules are not being set aside). It’s simply a free-standing system of liability “inherent” in the hierarchical relationship between EU and national law o Trigger model: Francovich transofrms non-directly effective EU expectations of a particular substantive benefit into a directly effective EU right to reparation against MS, such a transformation effected through the medium of the liability criteria in Brasserie de Pêcheur - DCI: o Primacy model: DCI is a corollary to supremacy ♣ It explains why DCI is limited by the need to respect legal certainty (= counterbalance to supremacy) ♣ But it doesn’t explain the contra legem exception because the domestic court should simply be able to disapply national legislation consistently with the exclusionary effect o Trigger model: DCI is not an autonomous linkage between EU and national law, but is merely a substantive obligation imposed by the Treaty on the national judges, which manifests itself within the national legal system thanks only to DE of its underlying legal basis (general principles, Article 4(3) TEU). - DE: o Primacy model: how to reconcile supremacy and the existence of a doctrine of direct effect at all? Their answer is that DE is necessary in substitution situations, as a tool for identifying which EU norms may produce a particular type of legal effect within the unitary system. But the problem is that the threshold criteria are relevant to exclusion and substitution

Answer 6

Primacy seems undermined by Pfeiffer and Berlusconi, but the trigger model only explains the caselaw incompletely (unless one decides to marginalize CIA Security and Unilever. The heyday of the primacy model appeared to be when several AGs argued that the CJEU should expressly articulate a distinction between exclusion/substitution (ex. AG Léger in Linster). But it was never fully convincing. The intellectual structure of the primacy model sees two different legal pathways: direct effect (substitution) or supremacy (exclusion), meaning that there are two balancing exercises that can lead to inconsistent or arbitrary outcomes (like in CIA Securities and Unilever – for DE, the primacy model accepts that for certain categories of dispute, certainty for individuals trumps uniformity and effectiveness of EU law, but it also insists on a very different balance of interests in other categories of distpute, placing a much higher emphasis on the full enforcement of EU law. The interests appear similar in substitution and exclusion cases; why is legal certainty so important in one but not the other? More recent caselaw appears to undermine the “primacy” model: - Pfeiffer: AG Colomer suggested that this was merely an example of exclusionary effect, but the Court went on its traditional no HDE line and then offered explanations as to the requiements of DCI - But then in Niselli (similar facts to Berlusconi), the CJEU, in line with AG Kokott, held that the Italian court would be bound to disapply the more recent and lenient (incompatible) Italian criminal legislation because it is a simple exclusion that would lead to D’s proceedings continuing on the basis of the previous legislation) primacy model! - But then in Berlusconi… But the trigger model can’t explain the caselaw either (notably Unilever and CIA Security)… - But it might be possible to describe them as manifestations of direct effect, without amounting to the prohibited HDE (though no one has yet offered a solution) - It might be explained by distinguishing between ordinary “regulatory” Directives and special “procedural” Directives, but why should they be treated differently? Also Wells doesn’t seek to interpret CIA Security as drawing that distinction - A “substantial procedural defect” is a new “trigger” for supremacy (but this is unsatisfactory, and disproportionate to say that the Notification Directive requires/deserves an entirely new linkage between EU and national legal orders) - Perhaps the most “satisfying” approach is to consider the two cases as belonging to a particular “period” of the CJEU’s caselaw where it was itself unclear how best to rationalize the relationship between supremacy and direct effect, and was prepared to experiment with different approaches, thereby leaving behind certain rulings that don’t sit easily with the trigger approach Conclusion: no model accurately depicts the CJEU’s caselaw without losing conceptual rigour, but the primacy model should be abandoned – it has conceptual problems and can no longer claim to explain the state of the law (after Pfeiffer and Berlusconi).

Answer 7

The CJEU has sought to “constitutionalize” the Treaty – to “fashion a constitutional framework for a federal-type structure in Europe”. “Whether this effort was always inspired by a clear and consistent philosophy is arguable, but that is not really important. What really matters are its achievements – and they are patent to all”. A constitution and an international treaty are different in several regards, including that treaties do not usually enjoy higher-law status with regard to the laws of contracting powers. But the “undisputed existence of a supremacy clause in the Community framework” is a product of “judicial creativeness” in Costa v ENEL. Despite several “grumblings” by national constitutional courts, many came to realize that “the alternative to the supremacy clause would have been a rapid erosion of the Community; and this was a possibility that nobody really envisaged, not even the most intransigent custodians of national sovereignty”. It was this “or else argument” that “led to a ready reception of the doctrine in Costa v ENEL”.

Answer 8

- Justification = effet utile - Consequence = CJEU makes connections between cases at a much higher level of abstraction, moving more freely between formal sources of law and sectors of EU law – effet utile is always a relevant consideration, so that judgments that rely on it have a potentially limitless scope of application

Answer 9

- Early judgments didn’t indicated whether DE entailed some specific legal consequence that the national court had to implement – Simmenthal clarified that the obligation was to disapply conflicting national laws, which directly flows from primacy. - But the question remains as to whether this obligation is dependent on the provision conferring rights on the individual – the answer must be no because in many situations the individual is free to act as they did because of the absence of regulation (when national rules are disapplied) not because they had a legal right (ex. Ratti). - Thus, DE gives an individual a right to rely on (ex.) a Directive, and it is irrelevant whether the individual was conferred a subjective right by the Directive

Answer 10

- This enables insufficiently precise and conditional provisions of a Diretive to produce some effects in national law, placing a duty on national courts, where effet utile requires, to change the traditional interpretation of national law so as to cmply with the Directive’s wording and purpose

Answer 11

- Arcaro: the CJEU treated the Marshall prohibition as a more general principle which underpinned DE and DCI - AG Jacobs in Centrosteel argued that Marshall did not require such a general constraint on horizontal effectiveness of Directives, as Directives can reate obligations on idividuals just not “by themselves” (but difficult to reconcile with estoppel argument, and especially “inverse vertical” cases (the state invokes a Directive against an individual), which explains cases like Kolpinghuis Nijmegen) - But in Marleasing the CJEU broke the link between the limits of DCI and prohibition against allowing Directives to imose obligations on idnviduals – Marshall was no longer presented as relating to the limits of the estoppel argument, but it was applied a contrario permitting other ways for Directives to affect the outcome of cases before national courts - Pfeiffer focused on DCI, holding that “the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective” and thus requiring: o All national provisions must be used in the interpretive process o Scope of application of national law can be restricted by applying them only insofar as compatible with Directive o National court must do whatever lies within its jurisdiction to ensure compatibility with Driective This effect is arguably achieved by means of national law, but indistinguishable from HDE - Pupino (contra legem limit, but in order to use it, the national court must consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the EU measure) - Adeneler (DCI extended into transposition period to refrain as far as possible from interpreting domestic law in a manner that might seriously compromise, after transposition period, attainment of the objective of the Directive) - Also Impact

Answer 12

- Faccini Dori made clear that EU law did not possess a perfect system of enforcement.

Answer 13

- Directives can be used as general criteria for national law’s compatibility with Eu law (regardless of DE’s threshold criteria and whether they conferred rights on individuals) o CIA Security: ♣ In CIA the CJEU was not concerned by the horizontal dimension of the case – the private individuals became “third parties” because the CJEU was more concerned about the vertical relationship between the state (that breached EU law) and the party whose conduct would be characterized as illegal should the unnotified technical regulation apply to them ♣ But problems: • Conceptual level: difficult to reconcile with logic of Marshall and Faccini Dori ♣ Practical level: who can invoke? Lemmens, thus, introduced an additional requirement – application has to be liable to create an obstacle to trade o Unilever: ♣ AG Jacobs argued that in civil proceedings between indivduals arising from a contract, the sanction in CIA cannot apply, because it is justified by the need to ensure the effectiveness of the control mechanism under the Directive ♣ But the CJEU doesn’t engage with these arguments, instead, maintaining that it was precisely because CIA had been horizontal that inapplicability of national provisions could be demanded in this case (while AG Jacobs argued that CIA exceptionally permitted the legal consequence of inapplicability despite the horizontal nature) o How to reconcile? ♣ Marshall can be reinterpreted to exclude only the invocability of substitution, but allowing the invocability of exclusion ♣ The nature of direct effect is for the protection of individual rights – when a Directive confers no such rights, then we can’t speak of HDE even if the Directive were applied in a horizontal case (primacy makes this possible) • But this would require retrospective rejection of a lot of the CJEU’s caselaw where it was DE that generated this consequence, also no a priori reason why the requirements of effectiveness should differ between exclusion and substittuion (Arnull) o Sapod Audic: CJEU holding that severity of the sanction should be regulated under the applicable national law (ex. nullity or unenforceability of the contract) - Directives can be used as grounds of review of private contracts to the extent that their use would not lead to the imposition of a new obligation on an individual (i.e. as grounds of review of national administrative decisions): o Wells (planning permission granted without EIA): ♣ on a superficial understanding, this was obviously a vertical case, but then the applicant’s aim was not to exclude application but subject authorities directly to the requirements stemming from the Directive (i.e. the Directive is being used as a standard of the legality of a national administrative decision) ♣ the CJEU’s judgment implies that applicability of the Directive to review national administrative decisions depends on their “direct effect”: “an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party” ♣ Thus the Marshall prohibition extends to cases where third parties would be imposed an obligation because of the applicant’s reliance on the Directive against the state – but obligations are contrasted with the “mere adverse repercussions on the rights of third parties” (which are fine) However, insistence on the Directive’s effectiveness despite the negative consequences for a private party was counterbalanced by the Court’s acceptance of the national courts’ discretion in determining what measures were necessary to ensure that projects were subjected to EIA: “it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended … or alternatively, if the individual so agrees, whether it is possible for the latter to claim

Answer 14

- This creates situations of “remedial imbalance” (Weatherill) whereby economically focused Treaty provisiosn are to a large extent enforceable against private parties whereas more socially focused Directives are not o BUT this overlooks the fact that two of the most broadly horizontally effective provisions are Art 141 TFEU (equal pay) and Art 18 TFEU (non-discrimination on ground of nationality) o AND The CJEU fund a way of improving enforceability of “social” Directives by relying on “general principles” ♣ Mangold: the national court is asked to only disapply national law (like in CIA Securities) but the incompatibility was substantive in this case – and the “right” is conferred by the contract between the parties and the remaining body of national law not the Directive (thus for many commentators the most problematic feature of the case was the “invention” of non-discrimination on the grounds of age as a PGDUE) ♣ Kucukdeveci: invoked the Charter ♣ AMS: confirmed the horizontal applicability of the Charter (within limits)

Answer 15

In conclusion, these doctrines complement each other in (1) achiving the broadest possible enforceability of EU norms, (2) protection of individual rights and (3) incentives for MSs to fulfill their obligations. But do the doctrines aimed at invocability of EU law by individuals before national courts paint a coherent picture? - Why doesn’t legal certainty prevent (1) negative consequnences for individuals other than obligations, (2) the very extensive DCI and (3) why can oblgiations be imposed on individuals when it is contained in a PGDUE or Charter right? - The CJEU doesn’t use arguments of fariness between parties and social justice very often - The justificatory force of the “estoppel argument” has led some to concluding that problematic judgments like CIA, Unilever, Marleasing, Pfeiffer, Mangold might be explained as “disguised” vertical cases - “opportunistic behavior” (Dougan) by individuals should be discouraged, but not every employer/trader who relies on national law are trying to exploit the fact of a MS’s breach to their advantage These doctrines also raise questions as to the limits of judicial power and the role of unrepresentative institutions in transforming the status of legal system provisions. Direct effect of provisions of the Treaty: both vertical and horizontal direct effect of Treaty provisions is possible (but, N.B., not automatic!).

Answer 16

Facts: whether Article 28 TFEU prohibiting the imposition of customs duties on imports from other Member States can be invoked as a matter of EU law in national courts. AG Roemer: anyone “familiar with Community law” knows that “in fact it does not just consist of contractual relations between a number of States considered as subjects of the law of nations”. CJEU: - Direct effect derives from the nature not text of the Treaty (Weatherill); it is “more than an agreement which merely creates mutual obligations between the contracting states”. EU law “not only imposes obligations on individuals but is also intended to confer on them rights which become part of their legal heritage”. These rights arise “not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals” and the MSs and Institutions. Dutch courts should as a matter of EU law protect such rights. - In this case, there is a “clear and unconditional prohibition” that is “not a positive but a negative obligation”, which is “not qualified by any reservation on the part of states” – the very nature of the prohibition makes it ideally adapted to produce direct effects in the legal relationship between MSs and their subjects. - Governments argued that Art 258 and 259 already create a system for exercising supervision of alleged violations, so that enforcement before national courts should be excluded. But this argument is “misconceived” – these mechanisms do not mean that invidiuals cannot plead these obligations before a national court. - If it were otherwise, there is a “risk that recourse to the procedure under these Arrticles sould be ineffective if it were to occur after the implementation of a ntional decision taken contray to the provisions of the Treaty” – the “vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision [of] the Commission and of Member States” Thus “vigilance of individuals” and the Commission/Member States is the dual vigilance. The CJEU drew from the existence of the Article 267 procedure, and from the place of the individual within the texture of the Treaty – persuasive, but a more modest view is possible (Weatherill). Thus, the CJEU “actively distanced EU law from orthodox international treaty law” (Weatherill) – it is “a new legal order of international law” (CJEU). - CF Costa v ENEL: “by contrast with ordinary international treaties”

Answer 17

1º The Treaty envisages infringement proceedings by the Commission for when MSs breach EU law (Art 258), but unearthing violations can be difficult and proceedings tend to be slow and sporadic: direct effect means that independently of action taken at EU level, a defaulting MS may also find itself the subject of control exercised by its own courts (principle of dual vigilance). Thus Van Gend took EU law “out of the hands of politicians and bureaucrats” and “gave it to the people” – it was a democratizing achievement ( F. Mancini and D. Keeling, ‘Democracy and the European Court of Justice’ (1994) 57 MLR 175) - Many litigants are driven by commercial interests. - There is an imbalance because the deregulatory teeth of EU law are sharper than the re-regulatory, so that provisions restraining authorities from restricting trade are typically precise enough to be directly effective whereas those regulating consumer, employee and environmental protection have been found not to be o But this argument shouldn’t be taken too far – many important cases have involved the promotion of social protection (ex. Defrenne v SABENA) In any case, Mancini and Keeling are right to insist on the practical significance of direct effect in empowering individuals, and in legalizing (i.e. bringing into the legal context) matters that might otherwise be dealt with through politically driven arrangements. Thus, direct effect is a means to promote the credibility of Treaty commitments, as evidenced by the absence of attempts to set it aside during Treaty revision.

Answer 18

2º Even so, Van Gend is narrow in terms of its elaboration of an EU system of rights: 1) The criteria imposed (clear, unconditional, negatively phrased, require no legislative intervention) 2) Narrow in its understanding of a “right”: there are two possible conceptions – a. Narrow – a right imposes on a Member State a duty not to violate certain interests (a sort of immunity) b. Broad – a right calls on all parties to respect, protect and make good the interests that lie at the heart of the right, can be asserted against anybody, and calls for full redress of the interest infringed Van Gend suggests that the narrow version is adopted because (1) it requires provisions to be negatively phrased (rights can only be used to call MSs to refrain from doing things not take positive action to protect individuals) and (2) unconditional suggests that a right cannot be used to call the court to weigh individual entitlements against other public interests recognized by EU law This highlights a tension in the Van Gend judgment between (1) protecting individual rights and (2) a countervailing reserve about the duties imposed on other parties. The CJEU’s caselaw marks a push and pull between the two elements.

Answer 19

Facts: under Belgian law female air stewards were required to retire at age 40 whereas male were not, generating a lower pension rate. Defrenne claimed that this violated Article 157(1) TFEU (“Member State shall ensure and maintain the principle that men and women should receive equal pay for work of equal value”). It was argued that the provision lacked direct effect because (1) it only sets out general principles and (2) it is programmatic in nature, requiring further implementation.

Answer 20

CJEU: a distinction must be drawn within Article 157 TFEU between: - Direct and overt discrimination, which may be identified solely with the aid of the criteria in the Article - Indirect and disguised discrimination, which can only be identified by reference to more explicit implementing provisions Direct discrimination in the first category must include in particular those that have their origin in legislative provisions or in collective labour agreements, and which may be detected on the basis of a purely legal analysis of the situation. This is even more in cases where men and women receive unequal pay for equal work carried out in the same establishment [22] – in such situations the court is in a position to establish all the facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same task. In such situations Art 157 is directly effective.

Answer 21

CJEU: - Article 157 only refers expressly to MSs this does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties. The effectiveness of Art 157 cannot be affected by failure of MSs to discharge the duty and the absence of challenge by the institutions. - Article 157 is a “principle” and therefore lacks direct effect the term “principle” is used in the Treaty to denote its fundamental nature, so that Uif this concept were to be attenuated to the point o reducing it to the level fo a vague declaration, the very foundations of the Community and the coherence of its external relations would be indirectly affected. - Applying the principle of equal pay by national courts would amount to modifying independent agreements concluded privately since Art 157 is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals. [39]

Answer 22

CJEU: because of the large number of people concerned who could not have foreseen the outcome but which might seriously affect the financial situation, it is appropriate to exceptionally take into account the fact that, over a prolonged period, the parties concerned have been led to continue with practices which were contrary to Article 157. Legal certainty make it impossible in principle to reopen questions as regards the past. Therefore, the direct effect of Article 157 cannot be relied on to support claims concerning pay periods prior to the date of judgment.

Answer 23

Regulations are for agriculture, transport, customs and the social security of migrant workers; Directives are for harmonizing national laws on such matters as taxes, banking, equality of the sexes, protection of the environment, employment contracts and organization of companies. The hope of seeing Europe grow institutionally, in matters of social relationships and in terms of quality of life rests to a large extent on the adoption and the implementation of Directives. Non-compliance with Directives is the most typical and most frequent form of MS infraction, and Community authorities often turn a blind eye to it. This gives Directives a dangerously elastic quality: MSs can accept a Directive knowing that the penalty for non-compliance is practically non-existent. Thus, it is sometimes said that Van Duyn is essentially concerned with the rule of law: “if a Court is forced to condone wholesale violation of a norm, that norm can no longer be termed law”. Essay point: note that many questions of Directives are in the context of sex discrimination because this area is an area of EU competence given shape by a string of important Directives that are often inadequately implemented at national leve.

Answer 24

Facts: A was refused leave to enter the UK in order to take up a post at the Church of Scientology, because the UK had imposed a ban on foreign scientologists entering the UK. She challenged the ban on the ground that a Directive required bans to be based on the personal conduct of the individual. Held: her association with the Church of Scientology met the requiremetns of the Directive, but refused to exclude the possibility that a Directive may be directly effective, because this would be incompatible with the binding effect attributed to Directives by the Treaty.

Answer 25

- Article 45 imposes on MSs a “precise obligation” which “does not require the adoption of any further measure on the part of the Community institutions or of the Member States”, and which leaves them in relation to implementation “no discretionary power” - Paragraph 3 defines limitations to which the right to freedom of movement is subject (public policy, public security and public health), but the application of these limitations is … subject to judicial control, so that MSs’ right to invoke the limitations does not prevent Article 45 from conferring on indviduals rights that are enforceable by them and that national courts must protect

Answer 26

The UK government argued that Art 189 distinguishes the effect of a Directive and Regulation, so that by adopting a Directive rather than a Regulation, the Council must have intended that it should have an effect other than that of a Regulation, and therefore lack direct effect. Rejected because: - If Art 189 provides that regulations are directly applicable and consequently may by their very nature have direct effect, it does not follow that other categoires of acts mentioned can never have similar effects. - It would be incompatible with the binding effect attributed to a Directive by Article 288 TFEU to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned - Where a particular course of conduct is imposed, the useful effect of the Directive would be weakened if individuals were prevented from relying on it before national courts - Art 267 implies that Directives may be invoked by indivduals in the national courts Then held that the provision in the Directive did have direct effect because: - It is intended to limit the discretionary power that national law generally confers on authorities - It lays down an obligation not subject to any exception or condition and which, by its very nature, does not require the intervention of any act on the part of the institutions or of Member States - Legal certainty requires that the persons concerned be allowed to rely on this obligation even though it has been laid down in a legislative act that “has no automatic direct effect in its entirety” [13]

Answer 27

Facts: Concerns a Directive with a number of express provisions concerning the classification, packaging and labelling of solvents, compliance with which entitled a trader to market his goods in the EU. CJEU held that the Directive was directly effective, and that MSs that have not implemented a directive by its deadline was disallowed from insisting in proceedings before national courts that an individual shall comply with domestic law rather than the provisions of the Directive, because it “may not rely, as against individuals, on its own failure to perform the obligations which the directive entails”. But that before the expiration of the transposition deadline, Directives could not have direct effect.

Answer 28

- It would be “incompatible with the binding effect whith Article 189 ascribes to diretives to exclude on principle the possibility of the obligations imposed by them being relied on by persons concerned” - Particularly where the Directive placed MSs under a “duty to adopt a certain course of action”, the effectiveness of this would be weakened. [21] - Thus, a MS which “has not adopted the implementing measures required by the directive in the prescribed periods” many not rely as against individuals, on its own failure to perform the obligations which the directive entails [22]

Answer 29

The applicant had pleaded “legitimate expectation” that compliance with the Directive prior to transposition deadline would be permissible: - It is only at the end of the prescribed period and in the event of the Member State’s default that the directive will be able to have direct effect - Since a Directive by its nature imposes obligations only on Member States, it is not possible for an individual to plead the principle of legitimate expectation before the expiry of the period of transposition Essay point : However, it suggests that in this case the direct effect was based on the estoppel argument, but not all directives. The CJEU said “particularly” in cases where the Directive places an obligation on MSs, the effectiveness of this would be weakened if individuals couldn’t enforce it. And therefore [estoppel argument]. But the use of “particularly” means that there might be other cases and other justifications, the estopel argument is only one possible argument that is particularly apt for this case because it’s the Member State that was trying to prosecute! Harmonization Directives that promote market integration (like in Ratti) will tend to have direct effect more easily if their terms are more concrete, so that many Directives are conditional in the sense only that they require implementation, and contain unconditional substantive rules. However, Directives remain different from Treaties/Regulations/Decisions: - They are incapable of direct effect until the deadline for transposition - They are not apt to impose obligations directly on private parties in proceedings before national courts With regards to horizontal direct effect, the CJEU abandoned its effet utile reasoning to focus on a much narrower explanation for Directives’ penetration of national legal proceedings:

Answer 30

Facts: an employee of a Health Authority in the UK was dismissed at the age of 62, having passed the “normal retirement age” of 60 for female employees whereas the age was 65 for males. She instituted proceedings against the Health Authority on grounds of sex discrimination contrary to a Directive.

Answer 31

The binding nature of a Directive, which constitutes the basis of the possibility of relying on [it] before a national court, exists only in relation to “each Member State to which it was addressed” (art 288 TFEU), so could not of itself impose obligations upon an individual. ([48]) - However, the individual could rely on a directive against the MS regardless of the capacity in which it was acting (whether as an employer or public authority). In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law. - The UK’s argument that it would create arbitrary and unfair distinction between state and private employees does not justify any other conclusion, as it may easily be avoided if the Member State concerned has correctly implemented the Directive in national law.

Answer 32

But this is problematic: - if the argument that directives lack HDE is based on not imposing obligations on individuals, then why does this not prevent Articles 49 and 157 from having direct effect, and thus being construed as imposing obligations on private parties and public authorities? - it might lead to undesirable consequences where one victim is not allowed to enforce because they are employed by a private sector employer, whereas another victim is allowed to enforce because they are employed by a public sector employer But essay point: NB the CJEU never uses the language of “estoppel” – indeed that was only part of the CJEU’s reasoning! The other part of the reasoning was that the binding effect of Directives was only on Member States (justifying, at least in theory, that they be bound irrespective of whether they were responsible for the wrong of not transposing). Essay point 2: in Marshall, does the CJEU essentially (in denying HDE) make a choice between different justificaitons for direct effect of Directives, in favour of the “estoppel argument” and to the detriment of the effet utile argument ([12] Van Duyn)?

Answer 33

Facts: an unimplemented directive was allowed to be enforced against a nationalized public utility (British Gas) whose board members were appointed by a Minister who also issued directions and instruments to the board. The board was also required to submit reports to the Secretary of State.

Answer 34

CJEU: - It is the jurisdiction of the CJEU to determine the categories of persons against whom a Directive may be relied on; it is the jurisidcition of national courts to decide whether a party to the proceedings falls within one of the categories. - Whatever its legal form, a body made responsible pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals. Thus it applies to tax authorities, local or regional authorities, constitutionally independent authorities responsible or public order and safety, public health authorities…

Answer 35

Thus, a body may be deemed part of the state on functional grounds: - Vassalo (CJEU): a Directive could be invoked against a hospital that received public funding but was not run by the state but was an autonomous establishment with its own directors. It was crucial for the CJEU that the national court saw the hospital as part of the public sector performing a public function o Thus there is still an important role for national courts to play in this! Or the CJEU might look to degree of state control: - Rohrbach: two companies owned by a public authority and carried out laundrette and gardening activities was held to be a part of the state (not because of its social function but purely because of state ownership) NB “state” embraces local authorities (Fratelli Costanzo v Milano). The rejection of HDE of Directives places a limit on the legal protection of those intended to benefit. This is illustrated by: Faccini

Answer 36

Facts: A private individual concluded a contract with a private seller, purchasing a language course. Shortly afterwards, she told the seller of her decision to withdraw from the contract, which she had a right to under an EU Directive that had not been implemented into Italian law.

Answer 37

- The introduction of citizenship of the Union raises the expectation that citizens of the Union will enjoy equality, at least before Community law. [53] - In the case of directives whose content is intended to have effects in relations between private persons and which embody provisions designed to protect the weaker party, it is obvious that the failure to transpose a directive deprives it of effet utile. - A provision of a directive … should be recognized as having substantive effect and the conduct of a Member State contrary to the Treaty should not be able to impede the assertion of legal positions which are in themselves complete. [54] - The rationale and manner of effect are fundamentally different than in the case of directives having vertical direct effect (MS cannot profit by their conduct contrary to Community law) – for HDE, the “directive would … be given effects erga omnes. It would as a result be equated with the directly applicable provisions of the Treaty” and would participate in the primacy of Community law, which would be desirable in the interests of the uniform, effective application of Community law - The freedom of MSs is “completely unaffected” until the transitional period expires, and even afterwards, MSs retain all the leeway that is intended by the Directive. - Directives don’t normally give MSs any discretion as to results intended to be achieved, and the binding effect “is inherent in the nature of directives” – the distinction between Directives and Regulations does not preclude the latter from having HDE, and indeed this would not blur the distinction because Directives only have direct effect after transposition deadline. - HDE does not impose a burden on third parties incompatible with the Rule of Law – indeed HDE appears “extremely problematic” from the point of view of the third party, and this is not eliminated by the problematic nature of indirect burdens due to (ex) DCI. However, the basic condition for a burden imposed on the citizen by legislative measures is their constitutive publication in an official organ – under the EEC publication of Directives is not mandatory, but following Maastricht, it will be mandatory. - For reasons of legal certainty HDE is mandatory. - Legitimate expectations (created by compliance with national law) no longer works after the publication of Directives and the expiration of the transposition deadline (because the burden becomes foreseeable. - The democratic deficit argument (national parliaments are bypassed when Directives are implemented) fails because the national legislature is not by-passed; it has every freedom during the period of transposition, and even afterwards, the obligation to implement still exists as does the leeway.

Answer 38

CJEU: the individual could not rely on the Directive before Italian courts because her claim was against another private party. Finding Directives capable of HDE would be to “recognize a power in the [Union] to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations”. (contrast AG’s opinion with that of the Court)... and frequently repeated since, e.g.:

Answer 39

Essay point: is the CJEU motivated (CF Marshall as a response to Cohn Bendit) once again by the BVerfG’s anxieties about Treaty amendment in the guise of udicial interpretation, so as to adopt in Faccini Dori a textual interpretation of the competence conferred by Article 288? This is also a two-way process – CF Madame Perreux (2009) reversing Cohn-Bendit. Essay point 2 : AG Lenz thinks that the HDE of directives would “participate in the primacy of Community law” – this appears to suggest he views the “trigger model” to be correct, whereas incidental direct effect might just mean that the primacy model is correct! Essay point 3 : it’s not completely true that the freedom of MSs is “completely unaffected” until the transitional period expires – true that HDE would not affect it, but the Inter-Wallonie ENvironnemental (Art 4(3)) would affect it! AG Lenz appears to think that direct effect is the only method to secure penetration of Directives into national law, whereas this is simply not the case!

Answer 40

Another point, not addressed in Faccini Dori, is that legal certainty is undermined because individuals cannot easily know of the content of Directives, but this is not so because is the content of EU law really harder to find/understand than domestic legislation? Furthermore, I would argue that it is easier to ascertain the content of EU law than national law of other Member States, and certainly it is easier (and an individual is more likely to) ascertain the content of an EU directive than its status under the national law of a Member State of which he is not resident and which might use a different language and legal system. In any case, in Wells the CJEU added the legal certainty consideration as an added justification, holding that “the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights”. But this means that private parties intended to be subject to obligations pursuant to Directives are protected from such obligations until such time as the State performs the necessary act of transposition, and that private parties intended to enjoy rights against other private parties must also wait. This means that (especially because the large majority of EU’s activity in labour market regulation, social policy, consumer protection and environmental protection is through Directives) the exclusion of HDE has the effect that State failure to implement them curtails in practice the envisaged scope of EU law. However, there are other devices that might cause unimplemented Directives to have an impact on legal proceedings before national courts: 1) Extended understanding of the state a. In Marshall, the CJEU treated a health authority as part of the “State” b. It went further in Foster, creating an analytically awkward argument where the CJEU appeared inclined to first create an exception for Directives and then narrow that down as far as possible. “Even if that was not the Court’s strategy, that was plainly the effect of its case law” 2) Obligation of consistent interpretation a. Marleasing, where the CJEU drew on Art 4(3) TEU (sincere co-operation). 3) Incidental effect 4) General principles (ex. Mangold) There is evident tension here between legal solutions that show fidelity to preservation of legal certainty on the one hand and, on the other, those that promote the deeper penetration of national legal orders by EU law.

Answer 41

Facts: German law correctly implemented the Working Time Directive but allowed a derogation for collective agreements to prescribe longer working hours in case of contracts involving significant periods of duty time. Having established that the derogation violated the Directive, the CJEU held that though the Directive was sufficiently precise to have direct effect, it could not because the proceedings were horizontal, so the duty of consistent interpretation applied.

Answer 42

after holding that the provision was sufficiently precise and unconditional to have direct effect, it could not because the proceedings were exclusively between private parties (applying Marshall), held that Von Colson applied – - It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective. That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned. - Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive - This principle is inherent in the Treaties - Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, 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 (ex. restrict scope) - In this instance, the principle of interpretation in conformity with Community law thus 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 Directive 93/104 is fully effective However, even if a Directive is incapable of horizontal application, a party may succeed if able to find a general principle of EU law on which it is possible to rely ‘horizontally’. Cf.:

Answer 43

A 56yo man enters into a fixed-term contract to work for another private party, relying on a domestic law intended to make it easier to conclude fixed-term contracts for older workers. There was a Directive that prohibited discrimination on the ground of age, but it didn’t have horizontal effect. CJEU: the Directive did not itself lay down the principle of equal treatment in the field of employment and occupation – that principle lay “in various international instruments and in the constitutional traditions common to the Member States”. Mangold doesn’t mention the Charter (Article 21), but the next case does

Answer 44

Under German law, periods of employment completed before the age of 25 were not taken into account for calculating the applicable notice period. CJEU: held, applying Mangold, that non-discrimination on the ground of age was a general principle of EU law, to which the Directive gave specific expression. Article 21 of the Charter also prohibits discrimination based on age, and to give full effectiveness of EU law, national courts must disapply any national provision contrary to it.

Answer 45

representation of employees because its number of employees didn’t cross the threshold. But the French law was contrary to a Directive because it allowed for the exclusion of certain categories of workers. CJEU: - Contra legem limit was reached – the French provision could not be interpreted consistently with the Directive - Article 27 of the Charter did not achieve an exclusionary effect like it did in Kucukdeveci because it was not sufficiently precise - Only Francovich liability was available

Answer 46

Interesting that still, two decades in, the CJEU is still giving very general judgments and ignoring the Advocate General. Similarly, in Dominguez, the CJEU could have used the right to annual leave (Article 31 of the Charter) in a way similar to Kukukdeveci, but did not, and therefore provided no possibility for the national law to be disapplied if it could not be interpreted in line with EU law. Thus, Chalmers et al. believe that the preferable approach is to say that Mangold/Kucukdeveci are reserved to (1) issues going to the core of human dignity, (2) where the right is very justiciable and (3) clear expression is given by an implementing Directive. It would apply to issues of non-discrimination on grounds of age, but possibly not to social rights like the right to annual leave.

Answer 47

1º Empirical study found that indirect effect is deployed more widely in British courts than direct effect (Chalmers), so that it “is currently the main form of ensuring effect of Directives whether correctly, incorrectly or not transposed at all” (Betlem).

Answer 48

- von Colson: very confined because (1) only applies to laws implementing Directives and (2) that are ambiguous - Marleasing: (1) widened scope to all national legislation and (2) strengthened the duty from ambiguity to contra legem - Pfeiffer: the legal system as a whole and not merely individual laws must be interpreted in light of EU law (ex. the duty extends to whether national law can be interpreted as according Courts the discretion not to apply a national law to the dispute)

Answer 49

It has been argued that indirect effect creates a new form of “inter-legality” in which a mix of national and EU law regulates a dispute: the EU element opens up adjudiciation to wider norms and concerns, while the national law ensures that the local traditions and contexts are not overlooked: - Amstutz – indirect effect allows “culture-specific constraints” and “local specificities of the various legal discourses” not to be pushed aside; it ensures that “two separate sets of norms do not emerge in Member States’ civil legal systems – one deriving from the historical trajectory of the State concerned, the other dictated by the Community”.

Answer 50

Essay point: do NOT say that indirect effect and broad notion of the state are simply ways of the CJEU introducing horizontal direct effect of Directives through the back door. “Indirect effect” is simply the duty of harmonious interpretation – it is the duty on national courts to interpret all national law consistently with all EU law – in a very small subset of cases, it may provide a sort of equivalent to a section 3 HRA duty to achieve the same result as if the directive did have horizontal direct effect. But this is only a small part of the story – there is also EU law in general that is not sufficiently precise. The doctrine of consistent interpretation is much broader than Directives. The best illustration of this is von Colson (1984) of the fact that this doctrine is much broader: two women applied to be prison guards in Germany, but Germany had a rule that said women could not be prison guards. They sue under German law, the German courts said there was direct effect of EU discrimination law, but at the time the national remedy for discrimination is reliance loss (transport fees to go to the interview, essentially). Thus they wanted to rely on the obligation to make a dissuasive sanction (Art 4(3) TEU), but no direct effect because not sufficiently clear and precise. Essay point 2: even though the effect of harmonious interpretation and direct effect might be the same, conceptually they are very different! Don’t get too side tracked by the effect.

Answer 51

It first identified this duty in von Colson (concerning German rules purporting to implement a Directive on equal treatment between men and women in the field of employment, though the remedy appeared to merely reimburse C’s costs in applying for the job, which fell short of the Directive’s requirement of adequate judicial protection for victims): - CJEU (after finding that the Directive was not sufficiently clear and precise to have direct effect): The obligation under Article 4(3) TEU to take all appropriate measures to ensure the fulfilment of their obligation is binding on all authorities of Member States, including the courts. It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement [the Directive], national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in Art 288(3) TFEU. A national court is required to do so in so far as it is given discretion to do so under national law. This case suggests restrictions on the scope of the doctrine: - It applies only to national legislation specifically introduced to implement EU obligations - Whether domestic judges engage in the process of consistent interpretation is a matter of discretion for national law to determine But these restrictions were rejected in Marleasing:

Answer 52

Facts: an EU directive contained an exhaustive list of grounds upon which MSs should treat companies as legally null and void, but Spanish law permitted nullity on certain grounds not listed in the legislation. The directive was probably sufficiently clear and precise, but it was a horizontal situation so no direct effect. CJEU: a national court called on to interpret national law is “required to do so, so far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter”, whether the relevant national provision was adopted before or after the Directive. This obligation is sourced from Article 4(3) TEU.

Answer 53

NB the point that the DCI applies to pre-existing legislation is not without controversy – Lord Slynn: “I find it difficult to say that a statute of 1870 must be interpreted in the light of a 1991 directive. If the former is in conflict with the latter, it is not for judges to strain language but for Governments to introduce new legislation.” This shows that the duty of harmonious interpretation functions similarly to s3 HRA: under Spanish law (same as French law) faced with the silence of Spanish company law you reason by analogy with contract law (absence of cause = voidness). But because of this duty this interpretation is not possible. Thus, the duty of consistent interpretation works between all types of parties: - Private party trying to enforce against the State (von Colson) - Private party trying to enforce against another private party (Marleasing) - State trying to enforce against a private party (Aslanidou) The principle also operates independently of direct effect and supremacy; it works if the provision is incapable of direct effect but also when it is capable of direct effect – the duty of consistent interpretation is the way of first resort: - Murphy v An Bord Telecom: the CJEU held that the duty to set aside national rules incompatible with the direct effect of Article 157 TFEU arises only if it proved impossible to construe the disputed national rules in accordance with the requirements of EU law

Answer 54

Facts: criminal law prosecution against an individual, authorities sought to supplement the prosecution by relying on definitions of mineral water detrimental to D contained in an unimplemented Directive. CJEU, after holding that a national authority may not rely, as against an individual, upon a provision of a Directive whose necessary implementation has not yet taken place: - The obligation on national courts to refer to the content of the directive when interpreting the relevant rules of its national law is limited by the general principles of law which form part of the Community law and in particular the priciples of legal certainty and non-retroactivity. Thus, a directive cannot, of itself …, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that Directive. Essay point : this shows that it’s the clash between legal certainty and giving full effect to EU law in national courts that is the main source of tension in all these cases – it just happens that legal certainty carries more weight in criminal law.

Answer 55

CJEU: - While the choice of penalties remains in the discretion of the Member States, they must ensure that infringements of EC law are punished under conditions which make the penalty effective, proportionate and dissuasive. - However, the principle of the retroactive application of the more lenient penalties should be considered one of the general principles of EC law as it forms part of the constitutional traditions common to the Member States. - A directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual. In particular, in a situation in which a directive is relied on against an individual by the authorities of a Member State within the context of criminal proceedings, a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive. But in this case it’s not the Directive itself that is imposing obligations on an individual or aggravating their criminal liability; it is rather the old Member State law (so this is a situation of exclusionary effect) (Tacconi)

Answer 56

CJEU, after affirming absence of HDE of directives and the DCI: - [17] “where it is seised of a dispute falling within the scope of the Directive and arising from facts postdating the expiry of the period for transposing the Directive, the national court, in applying provisions of domestic law or settled domestic case law … must interpret that law in such a way that it is applied in conformity with the aims of the Directive”. But in the ruling proper the “settled domestic case law” is absent, and it only refers to “provisions of domestic law predating or postdating the said Directive”.

Answer 57

CJEU held that the duty of consistent interpretation was “inherent in the system of the Treaty”, because it is a means whereby national courts may “ensure the full effectiveness” of EU law. It does not entail an interpretation merely of those provisions [enacted to implement the directive] 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. Thus, if the application of interpretative methods recognized by national law enables a domestic provision to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of that provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, then the national court is bound to use these methods. Thus the national court must “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.

Answer 58

Important point: in Marks and Spencer v Commissioner of Customs and Excise the CJEU said that implementation is an enduring obligation not exhausted by transposition on paper, which means that even if the MS correctly implements a Directive, national courts must still ensure that national authorities apply these measures in a manner compatible with it. This means that the Directive must always be taken into account in the development of national practice, and does not vanish in the face of the implementing text. This means that national judges must be attentive to interpretation of EU Directives, which is especially important because the CJEU’s interpretative choices are not always predictable. Pfeiffer gives the fullest statement of the extent of this obligation: the whole body of national law must be interpreted accordingly with the whole body of EU law.

Answer 59

- considered in Impact, AMS): an analogy can be drawn with the subjection of national remedies and procedures to the demands of EU law – where national courts must use the principle of effectiveness to adapt national remedies, but there are limits associated with legal certainty.

Answer 60

- a Directive cannot of itself have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of its provisions (Kolpinghuis Nijmegen) o Example – Arcaro concerned an Italian citizen charged before criminal courts with having discharged dangerous substances into a local water system, based on Italian law that had failed to properly implement a Directive, whose application would aggravate the criminal liability of the citizen. The CJEU advised that the duty of consistent interpretation reached its limit where this would lead to the imposition on a private party of obligations laid down in an incorrectly implemented directive

Answer 61

- Pupino (concerning an alleged incompatibility between Italian rules permitting cross-examination of evidence given by child victims of non-sexual abuse, contrary to a Framework Decision): the CJEU held that “the provisions … do not concern the extent of the criminal liability of the person concerned but the conduct of the proceedings and the means of taking evidence”, and as such the DCI was not qualified by reference to the principle of legality under Art 7(1) ECHR but by the national court’s duty to respect the defendant’s other fundamental rights under EU law (in particular right to a fair trial in the sense of Art 6 ECHR)

Answer 62

- Marleasing applies only as regards legally binding provisions of Union law – the obligation on non-binding provisions is much weaker (in particular Recommendations (Art 288 TFEU)) o Grimaldi: CJEU held that even though recommendations are not intended to produce binding effects and are not capable of creating rights that individuals can rely on before national courts, they are not without any legal effect. National courts must take recommendations into consideration in order to decide disputes, in particular where such recommendations cast light on the interpretation of national measures adopted in order to implement them, or where they are designed to supplement the binding provisions of EU law

Answer 63

In any case, the obligation is only “as far as possible”, which means that “the bolder the interpreting national judge, the less need for action taken directly against the defaulting State, and the deeper the damage to legal certainty— and the less significant the exclusion of horizontal direct effect in cases where private parties are affected by the exercise of the interpretative role cast upon national judges.” (Weatherill). Cases like Impact and AMS are rare, and most of what is regarded as impermissible is largely hidden within national practice, where there is doubtless much variation. Thus, indirect effect can provide some remedy for private parties, but at the expense of legal certainty.

Answer 64

Facts: 18 employees were employed on successive fixed-term contracts from May 2001 until September 2003. This was contrary to a Directive whose transposition deadline was in July 2002, and the question was whether the employees could claim for compensation for the period before that. CJEU: during the period prescribed for transposition, MSs to which it is addressed must refrain from taking any measures liable to seriously compromise the attainment of the result prescribed by it. This obligation applies just as much to national courts. Therefore, from the date … a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expred, attainment of the objective pursued by that directive.

Answer 65

An Irish reference concerning a Directive on gender equality. CJEU held that the DCI is “limited by general principles of law, particularly those of legal certainty and non- retroactivity” and so it “cannot serve as the basis for an interpretation of national law contra legem”. And giving a statute retrospective effect is a case of contra legem interpretation. In this case, domestic law appears to include a rule that precludes the retrospective application of legislation unless there is a clear and unambiguous indication to the countrary. It is for the referring court to ascertain whether there is a provision to that effect. In the absence of such a provision, Community law … cannot be interpreted as requiring the referring court to give [domestic law] retrospective effect because this would be contra legem. Essay point : this is similar to AMS’s application of contra legem interpretation, but this level of precision is uncommon in the CJEU’s caselaw. It is often difficult for national courts to know the weight of the principle of legal certainty as against the principle of conform-interpretation.

Answer 66

Facts: A suffered an injury on the way to work so that she could not work for 14 months, claimed 22 days annual paid leave, but the employer refused to grant it. French law provided (1) a condition for grant was that the employee worked for at least a month (L223-2 Code du Travail) and (2) this restriction did not apply where the absence was twelve months or less and due to work-related illness (L2223-4 Code du Travail). A Directive granted 20 days annual leave, and had been interpreted by the CJEU to mean that MSs could not stipulate a minimum amount of time before a pro rata amount of leave is claimed.

Answer 67

CJEU: the DCI is ‘inherent in the system of the TFEU” as it “permits national courts … to ensure the full effectiveness of European Union law”. It has certain limitations: general principles and contra legem. The national court claims that contra legem is reached because L223-2 cannot be interpreted consistently with the Directive, but the duty also requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognized by domestic law, with a view to ensuring that the directive in question is fully effective. In this case, Article L223-4 provides an exemption and is an integral part of the domestic law to be taken into consideration – it must be interpreted so that a period of absence due to an accident on the journey to or from work must be treated as being equivalent to a period of absence due to an accident at work. It can be seen that this creates problems of legal uncertainty: no restrictions on the right to annual leave are allowed in EU law, whereas French law clearly contains some restrictions. The CJEU seeks to reconcile this through an “opportunistic” interpretation, but this still leaves the source of the conflict intact. It can create new uncertainties: what is a journey to work? At what point is a court no longer engaging in interpretation?

Answer 68

Must the national court apply a general principle of EU law in a dispute between private parties and ‘set aside’ a conflicting national legislative provision? And must the national court give effect to an unwritten general principle of EU law, which prohibits age discrimination, even if this requires reversing its long-standing interpretive position and case law? Specifically, whether general principles of legal certainty and the legitimate expectations of private employers could offset the application of the general principle of non-discrimination on grounds of age, which protects the rights of older employees

Answer 69

the Danish court could interpret Danish law in conformity with the Employment Directive and give it indirect effect. - The Danish interpretation of the national provision was incompatible with the Directive, so that the provision of Danish law “quite simply” could not apply in relationships between employees and employers in public or private sector (otherwise the court’s judgment would be restricted to a single category of relationships). The AG acknowledged that the referring court was concerned about the contra legem limit of DCI, but advised the CJEU to examine the validity of the premise, expressing doubts as to whether the DKSC sent the reference for the right reasons. - Contra legem interpretation is an interpretation that contradicts the very wording of the national provision – the DKSC was very clearly not in such a situation – a conform interpretation would “in no way compel it to rewrite that provision of national law”, so would not make any “incursion into the sphere of competence of the national legislature”; it would “merely require it to change its caselaw” Essay point: the AG’s worry was incursion into the sphere of competence of the national legislature (and not legal certainty!). - Thus the DKSC incorrectly assumed that it needed to adopt a contra legem interpretation in order to comply with EU law – the interpretation would not be contra legem because the Danish legislation was ambiguous. The premise of the national court was mistaken. - The CJEU, in asking the DKSC to depart from its caselaw, would “merely” be reminding it of the essential role it plays in “nproviding the legal protection, which individuals derive from the rules of EU law, and (ensuring) that those rules are fully effective” [citing Kucukdeveci]

Answer 70

did not follow AG’s suggestion that it should examine the validity of the premise that national law could not bear consistent interpretation – it let the national court decide the matter instaed, and concentrated on the question of whether the principle of non-discrimination on the grounds of age precluded the application of the Danish legislation. - The Von Colsen principle entails “the obligation for national courts to change its established case law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive” - Therefore, the national court could not validly claim that consistent interpretation was impossible simply because it had always interpreted that provision in a manner incompatible with EU law. - However, if the national court did conclude that interpretation would be contra legem, then it has to set the national principle aside because of the general principle prohibiting age discrimination ([37]) Then considered the second question: whether a national court could balance the principle of non-discrimination on grounds of age against the principles of legal certainty and the protection of legitimate expectations, and whether it could conclude that the principle of legal certainty took precedence (no.).

Answer 71

1) contra legem does not apply to common law made by MS courts and (2) the first duty on MS courts, in cases of potential incompatibility between EU and national law, is to interpret harmoniously [35] this is the death knell to the “back door HDE” theory because the primary duty of MS courts is to take the harmonious interpretation route, direct effect comes second and if the first is not possible. So national courts are expected – up to a point – to correct the failures of the process of implementation of EU measures which is required at national level. Probably, this will not occur in an even manner State by State, court by court. Probably this will not occur in an even manner, substantive sector by substantive sector. Essay point: a broader duty of harmonious interpretation (to interpret “exclude” as “exclude, insofar as permitted by EU law”?)

Answer 72

A sought to restrain CIA Security from marketing an alarm system on the grounds that it had not received authorization as required by Belgian law (and was thus engaging in unfair competition), but the Belgian law breached an EU Directive because it should have been notified to the Commission. CJEU held that breach of the procedural obligation to notify robs the measure of enforceability in proceedings before national courts involving third parties, with the effect that a trader was unable to rely on Belgian law to secure a court order against another trader dealing in products that were not in conformity with Belgian technical regulation which had not been notified to the Commission.

Answer 73

the Directive lays down a “precise obligation on Member States to notify” – being “unconditional and sufficiently precise in terms of their content”, they may be relied on by individuals before national courts. Germany, Netherlands and UK argue that the Directive is “solely concerned with relations between the Member States and the Commission”, that it merely creates “procedural obligations”, that their “competence to adopt the regulations [was] unaffected” and that there was “no express provision relating to any effects attaching to non-compliance”. However, none of these factors prevents non-compliance with the Directive from rendering the regulation inapplicable. In a prior case (Enichem Base v Comune di Cinisello Balsamo) concerning a Directive on waste, the CJEU had held that the obligation to give prior notice that did not make entry into force of the provision subject to the Commission’s agreement concerned relations between the Member States and the Commission but did not afford individuals any rights capable of being infringed in the event of breach. However, the aim of this Directive is to protect freedom of movement of goods by means of preventive control. The effectiveness of Community control will be that much greater if the Directive is interpreted as meaning that the breach renders the technical regulations in question inapplicable to individuals.

Answer 74

Essay point: There is no question of HDE here – no obligation was imposed on a private party, just the application of the national rule was excluded. This relates to a completely different issue than HDE – HDE is about whether (and to what extent) a private party should be able to be bound by a provision of EU law, whereas here the problem is that the Directive that the national law breached had nothing to do with the substantive content of the law but simply a procedural requirement (indeed such is the argument of the parties). Essay point 2 : Arguably, the question here is whether or not an additional criterion for direct effect (other than unconditional and sufficiently precise) because this case is different from all previous cases in that the violation was procedural in nature – perhaps there should be a new requirement to the effect that the violation has to relate to the substantive content of the law. HDE in any case is not directly in issue. Essay point 3 : effectiveness “will be that much greater” – appears to be enough for the Directive to be “interpreted” as meaning X. It’s no longer that effectiveness requires, but merely will be that much greater… Essay point 4 : “none of these factors prevents” inapplicability to individuals – not even the fact that the Directive is “solely concerned with relations between the Member States and the Commission”. Essay point 5: The CJEU merely decided here that CIA was entitled to protection from the Belgian authorities because the Directive confers a right upon them, insofar as its competitors were seeking to remove that protection through the back door by enforcing Belgian law. Remember – the other private party sued first, and CIA was merely trying to use the Directive as a shield (and argue that they were complying with the law)! This is the case also in Unilever, but not Wells. Essay point 6 : saying that the purpose of the Directive was to secure free movement of goods is a stretch. Though this is the context of the Directive, it is not mentioned by any of its provisions. Thus, this style of interpretation generates uncertainty because it looks for inexplicit legislative intent. The doctrine of incidental effect can be criticized on a lot of different grounds, but being direct effect through the back door is not one of them. Essay point 7 : in citing Enichem, the CJEU appears to be agreeing that if it were a “mere” procedural requirement, then the result would have been different (no effect on individuals in case of breach), but that in this case it’s not a mere procedural requirement. Therefore, the problem is the interpretation of this particular directive, not the rule on incidental direct effect.

Answer 75

- the applicant was charged with driving while under the influence of alcohol, and argued in the criminal proceedings that the breathalyser was made according to a technical standard that had not been notified to the Commission so was incompatible with the Directive following CIA, so that evidence obtained against him with the breathalyser was inadmissible): the CJEU held that the obligation to notify is designed to protect freedom of voement for goods, whereas the criminal proceedings prohibit and penalize driving while under the influence of alcohol. While failure to notify a technical regulation renders such regulations inapplicable inasmuch as they hinder the use or marketing of a product which is not in conformity therewith, it does not have the effect of rendering unlawful any use of a product which is in conformity with regulations which have not been notified. [35] The use of the product in this case is not liable to create an obstacle to trade which could have been avoided if the notification procedure had been followed. [36] Thus the CJEU does recognize limits: both a focusing of the test in CIA on free movement ([35]) and a narrowing of the effectiveness rationale ([36]).

Answer 76

Unilever had supplied Central Food with a quantity of olive oil, and Central Food rejected this because they were not labelled in accordance with relevant Italian law. The law had been notified to the Commission but the standstill obligation had been breached. Unilever argued that the law should not be applied and sued Central Food for the price of the goods. CJEU accepted this.

Answer 77

the CJEU in CIA Security couldn’t have intended that the consequences of State default under the Notifications Directives should be invocable in all cases of proceedings between private parties: - Legal certainty: fo the day-to-day conduct of trade, technical regulations must be clearly and readily identifiable as enforceable or unenforceable. An individual trader should not have to be aware of the Directive, the judgment in CIA Securities, the technical regulation, and to establish with certainty whether the MS in question had complied with all the procedural requirements of the Directive. o “There may be uncertainty as to whether the measure is a technical regulation and whether it required notification; uncertainty … as to whether it has in fact been notified; uncertainty as to what legal regime is to replace the disapplied measures; uncertainty as to the appropriate remedies for the breach of contract, in the absence of fault in either party.” o “Such consequences would follow whether or not the technical regulation was an obstacle to the free movement of goods, and even where it facilitated such freedom of movement.” - Injustice: an individual will lose out because of MS behaviour not their own failure to comply with an obligation deriving from EU law; the economic survival of a firm might be threatened merely for the sake of the effectiveness of a mechanism designed to control Member States’ regulatory activities (as his only redress would be an “ex post hazardous and costly action for damages against a Member State”). And neither should the other firm be allowed to profit “entirely fortuitously” from the MS’s failure to comply with the Directive. Therefore, the applicability of a technical regulation in proceedings between individuals should depend only on its compatibility with Article 34 TFEU. As against an individual another individual should not be able to rely on a Member State’s failure to comply with the requirements of [the] Directive in order to set aside a technical regulation. Essay point: but Unilever is not necessarily relying on the Member State’s failure to comply with the Directive – it is just relying on the supremacy of EU law over national law to disapply that national law!

Answer 78

- Application of technical regulations adopted in breach of the Directive may have the effect of hindering the use or marketing of a product which does not conform to those regulations (ex. hinder Unilever from marketing the oil) - There is no reason to treat disputes between individuals relating to unfair competition (CIA) differently from disputes between individuals concerning contractual rights and obligatiosn (this case) - In circumstnaces where noncompliance with a Dirctive renders a technical regulation inapplicable, unlike the case of non-transposition of directives, the Directive does not in any way define the substantive scope of the legal rule on the basis of which the national court must decide the case before it. It creates neither rights nor obligations for individuals.

Answer 79

1º This is not a case of HDE, again, because the national law is simply excluded, leaving the pre-existing contract to determine the rights and obligations of the parties. The Directive did not impose an obligation on Central Food – the contract with Unilever did. Nevertheless, the Directive changed the legal position that appeared to prevail between the two parties – it transplanted the commercial risk. The novelty of the case is that the impact of the unenforceability of the State measure was felt directly in a contractual dispute between private parties. It is revealing because: - If you understand the refusal to permit HDE of Directives is based on the unacceptability of imposing direct obligations on private parties, then incidental effect is understandable - But if you understand the refusal to be based on legal certainty, then incidental effect, too, offends certainty… But there was a suggestion of how the impact on private parties might be softened: - CJEU, Sapod Audic: “the severity of the sanction under the applicable national law, such as nullity or unenforceability of the contract . . . is a question governed by national law, in particular as regards the rules and principles of contract law which limit or adjust that sanction in order to render its severity proportionate to the particular defect found”

Answer 80

- The current system for the decentralized enforcement of Community law suffers from numerous well-known problems: o the regrettable lack of horizontal direct effect for directives; o the intermittent rejection of the principle of supremacy by certain national judges; o the disputed rationale for and unpredictable nature of Community intervention in domestic remedies and procedural rules; o the reluctance of some national courts to submit an Article 234 reference even in cases where the Court of Justice’s guidance seems necessary and appropriate. - Such problems are now being overshadowed by renewed academic speculation about whether the time has come to reconsider the relationship between Community law and the national legal orders at a more fundamental level. o Prechal has argued that the doctrine of direct effect undermines the rule of law within the European Community by setting limits to the justiciability of Treaty norms before the domestic courts which do not apply in Article 226 enforcement proceedings before the Court of Justice. o Allott has expressed strong concerns that directives, like Article 234 references, hinder the full and proper integration of Treaty rules into the domestic legal orders by reinforcing the perception that Community law is something foreign and different, rather than an essential element of the citizen’s own legal patrimony. - Against this background, the judgment in Unilever Italia assumes a particularly enticing pose. The creative spirit of the Court of Justice may feel itself constrained by current political sensibilities from pursuing more radical and wholesale reform of the system for decentralized enforcement, but the collective judicial imagination is still clearly prepared to explore new ways of thinking about the relationship between Community and national law. - Indeed, perhaps the most teasing question raised by Unilever Italia is how far this new way of thinking will extend beyond the provisions of Directive 83/189: what other breaches of Community norms might be considered “substantial procedural defects” such as to take them outside the familiar framework of direct effect under Dori, and towards the sanction of inapplicability recognized under CIA Security? This opens up the likelihood of different approaches in different MSs.

Answer 81

a French law imposed an obligation relating to waste. In order to satisfy this obligation, Sapod concluded a contract with Eco Emballages, where the former would pay the latter to allow the former to use the latter’s waste-treatment facilities, so that the former can use a logo as proof of compliance with the national law. After a period of time, Sapod stopped paying Eco Emballages, and the latter sued Sapod under contract for the payment (equivalent to 2250 euros, in French francs). Sapod argued that the contract was invalid by virtue of French and EU law, because the national provision was a technical rule and was not notified to the Commission. NB the cour d’appel found for Eco-Emballages considering that “la société Sapod Audic, qui ne serait pas un tiers vis-à-vis d'Eco Emballages, ne pourrait s'en prévaloir et qu'il n'y avait aucune contestation sérieuse” (because the national provision was not contrary to the Directive), and Sapod attacked this by arguing that no distinction is made by the Directive betwenen contracting partner and third parties.

Answer 82

The Cour de cassation referred, and then held on 1 july 2003 (98-11.543) that: - Mais attendu … que la CJCE … a dit pour droit qu’une disposition nationale telle que [la disposition litigieuse] ne pourrait constituer une règle technique au sens de la directive qu’au cas où le juge national déciderait qu'elle doit être interprétée comme comportant une obligation de marquage ou d'étiquetage - L’article 5 du décret prévoit que la nature de l'identification est précisée dans les contrats entre les organismes ou les entreprises agréées et les producteurs, ce dont il ressort que ce n'est que dans ces contrats, tel que celui passé entre Sapod Audic et Eco Emballages, que l'obligation générale d'identification, édictée par l'article 4, second alinéa, a été concrétisée en une obligation particulière de marquage - Ainsi, l’article 4 n'entraîne pas, par elle-même, une obligation de marquage ou d'étiquetage des emballages et, ne se référant pas nécessairement au produit ou à son emballage en tant que tel, ne constitue pas une règle technique au sens de la directive - Moyen: le contrat était dépourvu d’objet “Mais attendu, en premier lieu, que l'arrêt relève que l'obligation de la société Sapod Audic d'éliminer ou de faire éliminer les déchets, même si ceux-ci étaient des films de plastique transparents se réduisant chacun à une quantité infime de plastique impropre à toute réutilisation, demeurait au regard du décret du 1er avril 1992 quelle que soit la forme et la particularité de ces déchets ; qu'il retient encore qu'Eco Emballages assume, à la place des sociétés qui contractent avec elle, l'obligation légale de valorisation des emballages usagés, en relation avec les collectivités locales et les filières de matériaux qui recyclent les déchets ; qu'en l'état de ces énonciations et appréciations, la cour d'appel, qui a répondu aux conclusions invoquées, a légalement justifié sa decision” Du coup rejeté le pourvoi de Sapod Audic, la condamne aux dépens, et à payer à la société Eco Emballages la somme de 2 250 euros.

Answer 83

If the national court were to interpret the [inconsistent national provision] as establishing an obligation to apply a mark or label and, hence, as constituting a technical regulation within the meaning of [the] Directive, then it would be incumbent on that court to refuse to apply that provision in the proceedings. However, as regards the severity of the sanction under the applicable national law, such as nullity or unenforceability of the contract between Sapod and Eco-Emballages, is a question governed by national law, in particular as regards the rules and principles of contract law which limit or adjust that sanction in order to render its severity proportionate to the particular defect found. However, these rules may not be less favourable than those governing similar domestic actions and may not be framed in such a way as to render impossible in practice the exercise of rights conferred by Community law.

Answer 84

Essay point : here we see a clash between a desire to soften the detrimental impact of incidental effect, with the need to ensure the principles of equivalence and effectiveness. But how do you make rules that are not less favourable than those governing “similar domestic actions”, when no similar domestic actions exist! Having your legal position changed because of the disapplication of a national provision by virtue of a European provision simply has no comparable counterpart in domestic law! This can be shown by the actual outcome of the case as decided by the Cour de cassation…

Answer 85

- In its well-meaning determination to bolster Directive 83/189’s system of ex ante supervision over the free movement of goods, the Court has in fact added a potentially destructive new variable to the already complex Internal Market equation. In cases such as Canal Satelite Digital and Sapod Audic, business undertakings exploit the mere fact of a substantial procedural defect so as to engage in market conduct which the Member State sought to castigate as socially undesirable. - This threatens to perforate the market with arbitrary and undesirable legislative vacuums – without any consideration of whether obstacles to trade erected by the disputed measures were wholly internal, and without any carefully balanced assessment of whether such obstacles may have been objectively justified as regards their extension to imported goods. - Furthermore, it is far from obvious that the urgency exemption provided for under Directive 83/189, coupled with the possibility of specific administrative action compatible with Articles 28–30 EC, really offer adequate safeguards for the protection of vulnerable public interest concerns. One hopes that, when the Full Court – or the legislature – next assesses the progress of the sanction of inapplicability, it will recognize the need to achieve a more balanced and legitimate reconciliation between the competing interests at stake in the operation of Directive 83/189.

Answer 86

A private individual complained that a quarry was being developed by a private mining company under an authorization from the public authority which should not have been issued pursuant to EU environmental protection legislation.

Answer 87

CJEU: “… the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights (Marshall). Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party …”

Answer 88

The CJEU held that the national court was entitled to require withdrawal of the authorization (even though this would prejudice the private mining company), and that this would not be a case of horizontal direct effect because the Directive did not impose an obligation on the mining company, but only adverse repercussions on it consequent on the application of the Directive in proceedings between Wells and the public authority. CJEU: “On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned.”

Answer 89

Note though how this is different from direct effect – this is a litigation against the Member State, but that as a result/by-product of this litigation, your relationship with another private party is changed (same in CIA and Unilever). This is not a litigation between private parties. Thus, conceptually, it is completely different from direct effect. Indeed, here EU law operates to exclude a rule of national law (≠ substitute an obligation drawn from a Directive for the existing obligation imposed by national law). Thus, this is not an exception to the CJEU’s refusal to extend HDE to Directives, but it is a legal doctrine that pays little attention to the demands of legal certainty: the private individual finds their legal situation radically altered by the invocation of EU law. Consider how these rulings differ from orthodox instances of the “horizontal direct effect of Directives” considered and rejected by the Court in

Answer 90

Facts: a telephone service provider challenged a decision by the German regulatory authority to allow Deutsche Telekom to charge for use of a network prohibited by a Directive. CJEU: a directive cannot of itself impose obligations on an individual, but can only confer rights. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from relying on the provisions of a directive against the Member State concerned. In this case, Deutsche Telekom is capable only of suffering adverse repercussions because it levied the connection charge. Such a removal of benefits cannot be regarded as an obligation falling on a third party.

Answer 91

REMOVAL OF BENEFITS = unjust enrichment – and “is capable only of suffering adverse repercussions because…” also suggests this type of reasoning! and in Case C-91/92 Faccini Dori v. Recreb [1994] ECR I-3325, and consistently since. Consider whether the Court has established a principled system for determining when and why unimplemented Directives may exert a prejudicial impact upon the position of private parties in litigation before national courts. For a helpful analysis of the exceptions in the case law from the ‘no horizontal direct effect’ rule, see

Answer 92

Starting with the precepts that (1) every legal rule serves a purpose or policy, (2) complex exceptions/qualifications are often indicative of uncertainty as to the soundness of the basic rule: - Textual argument: binding nature of Directives only exists in relation to “each Member State to which it is addressed” – this could just mean that Regulations are binding on all Member States, whereas Directives are only binding on MSs to which they are addressed… o The interpretation in Marshall (no obligations on individuals) is problematic because difficult to reconcile with DE of Treaty articles like Defrenne (AG Jacobs) o The CJEU doesn’t normally use textual interpretation – it derived DE from principled/teleological/functional reasoning, stop pretending that the answer is determined by textual argument o No clear rationale why the Treaty framers should have denied HDE to Directives - Legal certainty (Wells): o unclear whether this is the policy rationale for the textual limit or whether it’s an independent normative reason… o unclear whether it’s because (1) not sufficiently precise/unconditional, or (2) not published or (3) penal sanctions or (4) broader meaning of not creating “invidious choices” where private parties don’t know whether to comply with pre-existing national law or the unimplemented Directive or (5) clarity of the overall body of law o sits uneasily with HDE of Treaty articles - Distinction between Directives and Regualtions: o equally true of VDE o wrong – MSs are still free to choose the form and methods of implementation, only when MSs fail to implement does HDE come in

Answer 93

- Expansive conception of the State: a body that might be regarded in some way as connected with the state is punished for the state’s failing… - Indirect effect: o Textual argument: difficult to reconcile Marshall with Von Colson because ♣ Formalism – outcome will often be the same ♣ Premise (the Treaty means that Directives cannot bind individuals (Marshall) fidelity of Treaty interpretation means we must beware of legal doctrines that circumvent this limitation ♣ Arcaro limit not taken seriously – AG Jacobs in Centrosteel that it should be read in context of criminal proceedings, but that DCI may well lead to the imposition of civil liability or civil obligation on individuals ♣ Though it’s through national law that the obligation takes effect, it’s nonetheless EU law that orchestrates the entire nature of the inquiry o Legal certainty argument: problems for individuals are greater in Von Colson than in HDE - Incidental effect: focuses on the “itself” o Textual argument: the burden on private parties is greater than in Marshall/Dori type cases o Legal certainty: as recognized by AG Jacobs in Unilever, would be wrong to find a breach of contract between individuals merely because of a failure to notify the MS of the Directive (+ uncertainty as to whether notification requirements imposed by other Directives also have incidental effect) - Regulations conditional on compliance with Directives: though a Directie cannot of itself impose obligations on an individual, “it cannto be precluded, in principle, that provisions of a directive may be applicable by means of an express reference in a regulation to its provisions” (Viamex) - Directives and general principles of law (Mangold): shows that the very fact that Directives don’t have HDE but other norms of EU law can gives rise to tension and uncertainty