EU Law and National Courts

Question 1

Recap of Van Gend en Loos criteria for direct effect?

Answer 1

• The provision itself must be sufficiently clear and precise.
• It must also be unconditional.

Question 2

What does Art 288 TFEU say re. directives?

Answer 2

A directive… “shall leave to the national authorities the choice of form and methods.”
- means that all directives have to be implemented by the Member States. This is done by the Member States enacting national legislation to incorporate or give effect to them.

Question 3

What happens if a member state doesn’t implement a directive properly?

Answer 3

Effect of depriving individuals of the rights which they were entitled to under that directive.

Question 4

Why can a directive not have direct effect under the van gend en loos criteria?

Answer 4

Because of (2) unconditional - a provision will not be unconditional if it is subject to implementation by Member States.

Question 5

What did the courts say in Ratti re. direct effect?

Answer 5

The rationale it adopted was that a Member State cannot rely on its own failure to perform the obligations that a directive entails. In other words, it simply presented direct effect as a solution to the failure of Member States to perform their obligations under article 288 TFEU to implement directives properly.

Question 6

How did the CoJ develop the requirements for direct effect so that they could be reconciled with directives?

Answer 6

1. Implementation date must have passed
2. If the deadline had expired, then the directive will be capable of having direct effect if the provision of the directive has not been implemented properly.
   a. not implemented at all
   b. only partially/incorrectly implemented
3. Directive is being applied in a way which undermines the objective of the directive. (Marks and Spencer Case)

Question 7

Can directives have both vertical (state) and horizontal (private party) effect?

Answer 7

No - ONLY VERTICAL.

Question 8

Examples of ‘states’ i.e. what is the state?

Answer 8

1. tax authority (Becker)
2. area healthy authority (Marshall)
3. independent police force (Johnston)
4. Local and regional authorities (Fratelli)

Question 9

Key case for ‘what is the state?’

Answer 9

Foster - age discrimination (British Gas).

Question 10

What were the two tests established in Foster?

Answer 10

Bipartite and tripartite test.

Question 11

What’s the bipartite test?

Answer 11

• They were subject to the authority or control of the state, or
• They had special powers beyond those which result from the normal rules applicable to relations between individuals.

Question 12

What’s the tripartite test?

Answer 12

• The body has been made responsible, pursuant to a measure adopted by the State, for providing a public service,
• It does so under the control of the State, and
• It has for that purpose special powers beyond those which result from the normal rules
applicable in relations between individuals.

Question 13

Issues in Foster with the two tests?

Answer 13

In final judgment court only cited tripartite test - really unclear which was relevant.

Question 14

What is the current test for ‘what is the state?’

Answer 14

Following entities considered part of state: (Farrell)

1) Entities which are legal persons governed by public law that are part of the State in the broad sense. This will include legislative and governmental bodies at national, regional and local level as well as other administrative entities governed by public law.
2) Entities which are subject to the authority or control of a public body. A public body here would appear to refer to the entities falling within the first limb.
3) Entities which have been required, by such a public body, to perform a task in the public interest and have been given, for that purpose, special powers.

Question 15

Can directives have direct effect in matters of criminal liability?

Answer 15

No - a directive cannot, of itself and independently of an implementing law, determine or aggravate criminal liability. (Berlusconi)

Question 16

The general principle is that directives cannot have HORIZONTAL direct effect - what are the 3 situations i.e. rules that the CoJ has relied upon to get out of this when the issue arises?

Answer 16

1. Triangulation
2. Incidental Horizontal Effect
3. The Mangold Principle

Question 17

What’s Triangulation?

Answer 17

Situations in which reliance on a directive against the State has a practical impact on a private party.
- CoJ has held directive can still have direct effect - i.e. mere fact that it would have adverse repercussions on a private third party does not justify preventing an individual from invoking the provisions of a directive against the Member State concerned.

Question 18

What’s Incidental Horizontal Effect?

Answer 18

Arises where the State fails to comply with an obligation under a directive to notify the Commission of national regulatory measures, and this failure is relied upon in a legal action against a private party to render those measures inapplicable.
- Looks at directive wording - if it imposes procedural obligation on member states rather than legal obligation on private party.

Question 19

What’s The Mangold Principle?

Answer 19

Permits a directive to be given direct effect against the private party where that directive is giving expression to the general principle of EU law prohibiting discrimination in employment, at least in relation to age.
- i.e.: the obligation being enforced had not been laid down by the directive itself but by a general principle of EU law which the directive was giving expression to. As such, it can be reconciled with the principle in Marshall as the directive was not, in itself, imposing the obligation.

CONTROVERSIAL: has only been relied upon in cases of age discrimination.

Question 20

What is indirect effect?

Answer 20

Imposes an obligation on national courts to interpret national law in a way that is compatible with EU law.

Question 21

Key case for indirect effect?

Answer 21

Von Colson (1984)

Question 22

Facts of Von Colson?

Answer 22

Sex discrimination case (women at prison)
West Germany had implemented Equal Treatment Directive - women brought claim in West German Court. for sex discrimination - only entitled to travel expenses.
Then tried to rely on Equal Treatment Directive itself - West German Court made preliminary reference to CoJ.

Question 23

Judgment of Von Colson?

Answer 23

CoJ said can’t have direct effect as not sufficiently legal precise (re remedies).
BUT introduced indirect effect - imposed interpretive obligation.

Question 24

What is ‘the interpretive obligation’?

Answer 24

‘national courts are required to interpret their national law in the light of the wording and purpose of the directive in order to achieve the result [envisaged by that directive]…’

limit?

‘in so far as it is given discretion to do so under national law.’

Question 25

Rationale behind indirect effect?

Answer 25

Under article 189 of the EEC treaty (now article 288 TFEU), Member States were required to achieve the result envisaged by the directive. Member States were also required by article 5 of the EEC treaty (now article 4(3) TEU) to take all appropriate measures to ensure that their treaty obligations are fulfilled.

Question 26

1. Can Indirect Effect Apply Horizontally?

Answer 26

Yes - available against private party.

Advantage over direct effect when dealing with directives.

Question 27

2. Can indirect effect apply where the national law had not been enacted to implement an EU measure?

Answer 27

It does not matter whether they were adopted before the directive or after the directive. It follows from this that it also does not matter whether or not the national law was enacted to implement the directive or other form of EU law. Indirect effect is still applicable.

‘consider national law as a whole’

Question 28

How far can the interpretation of ‘so far as…’ be pushed?

Answer 28

National courts need only interpret national law in conformity with EU law “in so far as it is given discretion to do so under national law.”
it is not possible to interpret national law in a way that is compatible with the EU law where the national law expressly contradicts the provision of EU law.
National courts are not required to interpret national law in a way that contradicts that national law.

Question 29

What are the principles for the scope of ‘so far as’?

Answer 29

• There is no need to find that the statutory language should be ambiguous before interpreting the legislation.
• The interpretation can change the meaning of the legislation in a way that involves a substantial departure from the language. It can read the language more restrictively or more expansively and can read words into the legislation.
• However, the court must not rewrite legislation in a way that goes beyond interpretation. It cannot read words into the legislation that go against the grain of the legislation. Nor can it adopt a meaning that departs from a fundamental feature of the legislation or a cardinal principle of it.

Question 30

What are four further limitations to indirect effect?

Answer 30

1. indirect effect is redundant where there
   is no national law to interpret.
2. directive can only be given indirect effect where the implementation date has expired
3. indirect effect cannot be relied upon to determine or aggravate criminal liability
4. limited by the general principles of EU law.

Question 31

Can other legal measures also apply indirect effect?

Answer 31

Yes - such as decisions and international agreements.

Question 32

What can state liability help with?

Answer 32

Enables individuals to recover compensation from a Member State where they suffered loss as a result of the failure of the Member State to comply with its obligations under EU law.
- Limited to compensation

Question 33

When was state liability first established?

Answer 33

Francovich case

Question 34

Facts of Francovich?

Answer 34

The case concerned Directive 897/80. This is a directive under which Member States were supposed to establish guarantee institutions. These guarantee institutions were then to pay wages - insolvency.
BUT Italy did not implement this directive (had already been brought before Court about this).
- No direct effect - not sufficiently clear and precise
- No indirect effect - - no relevant Italian law to interpret
Created state liability.

Question 35

Rationale behind state liability in Francovich?

Answer 35

1. relied on the need to ensure the full effectiveness of Community law.
2. held that Member States are required by the article 5 of the EEC treaty (now 4(3) TEU) to take all appropriate measures to ensure that their treaty obligations are fulfilled.

Question 36

What are the three conditions for state liability?

Answer 36

1) The result prescribed by the directive should entail the grant of rights to individuals.
2) It should be possible to identify the content of those rights on the basis of the directive.
3) There must be a causal link between the breach and the loss or damage suffered.

Question 37

What did the court clarify in Brasserie?

Answer 37

1. State liability is potentially applicable for any breach of EU law
2. Did not matter which organ of the state was responsible
3. State liability is available even if the EU measure in question has direct effect.

Question 38

What’s the Brasserie Test? (3)

Answer 38

1) The rule of law infringed must be intended to confer rights on individuals.
2) The breach must be SUFFICIENTLY SERIOUS.
3) There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.

Question 39

What is meant by sufficiently serious breach? (5)

Answer 39

• The clarity and precision of the rule breached;
• The measure of discretion left to Member State by the rule;
• Whether the breach was intentional or excusable;
• Whether or not one of the institutions contributed towards the breach; and
• The extent to which the Member State adopted or retained national laws which were contrary to EU Law

Question 40

What did the court consider when finding the breach in British Telecommunications was not sufficiently serious?

Answer 40

• There was a lack of precision in the directive. It wasn’t clear enough.
• The United Kingdom had interpreted the directive in good faith when it sought to implement it. That interpretation had not been obviously wrong.
• The same mistaken interpretation had been made by other Member States.
• This interpretation had not been manifestly contrary to the Directive’s wording or objective.
• Finally, there had been no guidance from the Commission or the Court of Justice about how the directive was to be interpreted.
- Honest attempt to implement directive had been tried.

Question 41

What did the court find in Hedley Thomas?

Answer 41

Breach sufficiently serious - automatically sufficiently serious where the State had no or only limited discretion as to how it was to act under the particular EU measure.

Question 42

How can you reconcile there being 2 tests for state liability? (i.e. Francovich and Brasserie)

Answer 42

Tests in Francovich and the test in Brasserie du Pêcheur are the same in substance.