- Direct effect, indirect effect, incidental/exclusionary effect, the use of general principles and state liability have evolved over time. They are not in the Treaties. There are ambiguities and inconsistencies between them and some principles/concepts have been refined (or in some cases even introduced) as responses to problems encountered by others.
- The principles are designed to grant rights for individuals to use the rights in domestic courts (i.e. British prisoners using EU rules against state to vote)
- An individual can use their rights against a member state (VERTICAL DIRECT EFFECT)
- MS's did not realise they were signing up to give individual citizen rights. The treaties are designed to apply between MS's so their effect on indivduals is not clear. Directives are designed for MS's and these cause the most problem as individuals can now in some circumstances invoke their rights through them. Directives are of a special nature as legal instruments.
- The commission oversee the MS's enforceability of treaties and directives. It seems that citizens are also now doing this job too!
- The Court has found the question of the precise legal consequences of EU Directives a particularly tricky conundrum
The principles development...DIRECT EFFECT 1
- EU law is supreme = Factortame!
- Attempting to balance the member states’ interests with the inherent rights of individuals through the application of the Community’s legal instruments has proved to be a complex saga.
- Article 288 of the Treaty on the functioning of the European Union (TFEU) provides that, “a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”
- Direct effect def: this doctrine endows EU provisions with the characteristic that they may be enforced by individuals in their national courts. Only the court may declare a provision to have direct effect.
Direct effect 2
- Standard test: Van Gend en Loos 1963 (Treaty provision): 3 req's: a) clear & unambigious b) unconditional c)not dependent for its operation on further action to be taken by EU or nat authorities. These criteria were difficult to reconcile w/the nature of the directives (absence of discretion/absence of the need for implementing measures.
- Thus, in Van Duyn v Home Office (Scientology member dutch woman wanted to work in UK but home office declined her as didnt like) the CJEU held directive provisions could bear direct effect in addition to Treaties to give full effect to such useful acts to allow individuals to rely upon them, bring Q's before the national courts per Art 267 and ensure fulfilfment of EU legal values.
- AGIM v Belgium: a provision must be sufficiently clear, precise & unconditional to be DE
- A MS can choose the means of achieving the directive result per Article 288 TFEU, but this does not preclude DE (Belgische Staat v Cobelfret).
- Implementation date of a directive must have passed was added to the criteria per Ratti+Becker
- A further criteria that was added for directives only=must be a vertical relationship. This is due to the very nature of directives as they are aimed at MS's per Marhsall I (employed by Health Auth so vertical but reasoning in case was v. strict for future cases) 'only in relation to each MS it is addressed'. This has produced inequality for those in a horizontal relationship.
- Court taken a wide view of what is the state. Foster v British Gas: 'subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals...'. Providing a public service under the control of the State and which has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included=utility companies/ public universities! (Vassallo (Italian hospital) and Rohrbach (Austrian laundrette owned by pub auth!) and Griffin (privatised water company) and NUT (aided school) all within vertical relationship.
- Dori (EC directive on contracts concluded away from business, containing right to cooling off period+Italy not implemented on time, Dori enters agreement to buy language lessons=horiz relation, cant assert rights to change her mind): affirmed Marshall. 'Extending the case law to the sphere of relations between individuals would recognise a competence that is not conferred on EU. AG Lenz: critique led+said individuals should be protected, non-discrimination=fund. principle, publish directives so individual companies have notice of obligations).
- Court maintains theortical position against allowing horiz DE of directives: Kucukdeveci & Dominguez. However has tried number of other conceptual devices to circumvent the strictness following criticism after Marshall discrimination.
Courts ways around unfairness of DE..Exclusionary
Exclusionary effect: (Backdrop=EU supremecy and force MS to comply. Does presence of directive 'exclude' the operation of otherwise relevant national law. Exclude national law.)
- CIA Security (Belgium fails to notify security equip regs under Directive. CIA markets alarms in breach of Belg regs, a competitor accuses CIA of malpractice, CIA sue for libel, can CIA ignore Belgian law as it has not been notified of Directive? Would this be allowing prohibited HE? Court held: directive produced exclusionary effect to exclude nat law. Directive has HE technically.
- Lemmens (strikes balance between an unacceptable HE and exclusionary effect. (Directive, L charged w/drink driving, claims breath equip not been notified and criminal charge=unreliable. CoJ distinguishes between purposes of Dir=goods vs. criminal. Dir has no exclusionary effect.
- Unilever (AG Jacobs): 'many practical problems with the use of exclusionary effect, especially for the legal certainty of transactions entered into on the basis of national law'. (Italian olive oil labelling law, notified but not suspended pending approval, U contracts to supply with oil, supplier rejects oil and U sues for price. Exclusionary eff between two priv parties! Court allows EE, it is about breach that triggers dissaplication. Competing views of AG and CJEU.
Exclusionary effect commentary
- Dougan, ‘When worlds collide! Competing visions relationship between DE and supremacy: 2007: underlying prob=court dithered themselves about vision for relationship between DE and supremecy. Some rulings primacy model and some trigger model. No model can perform impossible task of accomodating jurisprudence and still emerging unscathed. Primacy no longer explains current state of law as too straight forward. Trigger more sustainable. Nevertheless, the case law on DE is fractured and fumbling and a descriptive a/c of it is a task only for masochists. CIA & Unilever not compatible with trigger model and should be treated as ad hoc exceptions to no horizontal DE rule with little rhyme or reason to justify. Models of vision of supremecy and DE used to make greater sense of CoJ's exclusionary effect case law. Pfeiffer & Berlusconi have undermined the primacy model and now rejected it as a working template for the relationship between DE and supremecy.
- Real explanation=courts attempt to protect supremecy by other means than DE? Kuckukdeveci: german rule whereby employment before age of 25 not counted for purposes of given notice of dismissal. K employed by private company from 18=horizontal. K dismissed at 28, given notice as if employed for 3 years not 10. K claimed inadequate notice+German rules incompatible with EU age discrimination directive. AG Bot claimed exclusionary effect is a palliative for the harshness of no horizontal rule. Using the directive can cleanse nat law contrary to EU law, even between private indiv's. AG claims CoJ never accepted this explicitly! AG gives broad exception for EE, CoJ says can rely on general principle of EU law and nat disapply. No mention of EE!!!
- The bar against horizontal direct effect of directives remains formally in place. However, the Court has been at pains to stretch other interpretative techniques to avoid the harshest applications of this stance.
- Mangold 2005: (arguably fabricated age discrimination case, UK & Germany used extension to implicate directive requiring fixed term contracts to be justified and proportional, M in horiz relation so no DE, implementation not expired )recognised by the CJEU that some Directives are simply expressions of fundamental, general principles of EU law such as age discrimination? REALLY? Directive just the expression of that principle. Where a Directive embodies such a principle, a claimant may rely on the principle expressed rather than the Directive itself, with the effect being that the national court must disapply, if necessary, any provision of national legislation contrary to the principle. Solves problem but is this judicial activism? Too far?
- AG Mazak in Felix: Mangold= very slippery slope both as regards general principles AND way that court applied it by not stating any boundaries! (case made no ref to AG's critique, decides case on other grounds nat law compat with directive anyway (another approach arguably?) Bartch distinguished Mangold anyway as not connected with EU law.
- Pedro Manuel AG Kokott discussed possibility of extending the doctrine to include other general legal principles such as non-discrimination in respect of sex, this wasnt followed by CJEU.
Mangold is still alive!
Kucukdeveci: (2010) AG Bot: (another age discrim case but AFTER implementation date, unlike Mangold) AG focussed on directive rather than 'general principle from Mangold' stating the german age persued no legit social objective. Suggested court take more ambitious approach and accept reliance on directives which facilitates the implementation of the general principle of equal treatement to disapply conflicting nat laws, only way to square Mangold and no horizontal rule. Obligation should apply during the time period for implementation (as in Mangold). This reinforces argument by ref to Art 21 Charter of Fundamental Rights. AG relying on directive as expression of general principle NOT Mangold! Court disagreed: non-discrim=general principle and Mangold applies!! Gen principle overrides nat law. Court giving direct effect to general principles as a way around the bar! The directive gives the GENERAL PRINC expression (other way to AG Bot). Nat court to disapply conflicting provision. Is this exclus effect? or direct effect of gen principle? or both? (NB: another age case)
- Other forms of discrimination general principles too? Sex discrim: Roca Alvarez (AG Kokott) Spanish rule allowing new mothers a reduction in working day, avail to dads too but only if mum employed and didnt claim herself, mother self-empl so dad denied. AG said remains to be seen whether court will extend horiz DE to other gen principles and claims step too far to discuss Mangold here and should be discussing limits of Mangold first. Court endoreses AG and doesnt discuss Mangold. Says Directive precludes nat law=exclus effect?
Time period for general principles?
- Romer 2011: (R retired German in same sex partnership in 2001, tax rules=R gets 300 p month less pension than if married, directive to combat discrim by 2003, sex orient case, employed by state so vertical, R's claim starts during implement period for directive i.e. 2001. AG Jaaskinen: If age=gen principle of EU law then so is sex orient as per ECHR. If R not governed by Directive then gen principle should apply from 2001 not 2003. Court: directive precludes discrim, dir=expression of gen principle but principle req's connection with EU law+none via Art 13 or via Directive until expiry date 2003. R's rights from 2003. General principles DE (Mangold)=pre-implement date VS. directive an expression of general principle=exlus effect and only after implementation date. Court chose the latter, confined to expiry date. Vertical=directive DE after date and rights derived from directive. Retracting general principles of Mangold? Some equalities more equal than others? All cases better explained as exclusionary?
- Exclusionary effect: directives only? disapply nat law, no substitution to enforce supremecy and leave parties to use cleansed nat law. Only applies after implement date for directives.
- General principles: Mangold: which equalities? seems only age at the moment? DE of principles result per AG Kokott or disapply nat law? Can apply during implement date (Romer confused?) Has Romer killed it? Wait and see. Should we just give horiz DE to directives rather than these complex and multifaced approaches? Directives clothe the dry bones of general principles?
General Principle commentary:
- Thüsing & Horler, casenote (2010) state: 'ECJ has outdone itself this time, pushing the engine too far. Goes far beyond actual subject matter of case+beyond the realms of employment law’.
- Thomas Papadopoulos Criticising the horizontal direct effect of the EU general principle of equality 2011: inconsistent with the legal framework of horizontal direct effect. Pertainly, the CJEU should seek sooner or later to clarify the obscure points that were left unanswered and should provide the conditions of a sophisticated, rather than an occasional application of the horizontal direct effect of the general principle of equality. clash between the horizontal direct effect of the general principle of equality and the general principle of legal certainty. CoJ contradicting themselves and undermining the general principle of EU law: legal certainty! May change now post flurry of case law as Charter legally binding post Lisbon. Argued that the CJEU has undermined the purpose of direct effect.
- Paul Craig 2009 'Legal effect of directives, policy, rules and exceptions': rationale for core rule that directives do not have horiz DE based on treaties+ legal certainty=unconvincing. Complex legal exceptions is indicadive of doubt to its soundness. AG Jacobs (and AG Lenz) were right when he said it may be conductive to greater legal certainty+more coherent system if provisions of directive and increasing complexity be directly enforceable against individuals. Difficult to be optimistic about future developements: longer embedded in cases (25yrs now)=more diff to change!Have to grapple w/intricacies and more new exceptions invented too!
EU oblig upon nat courts to interpret nat law so far as possible to be consistent with EU norms/directive objective (interpretative technique) use if nat law, contract, regulations etc.
- Invented by CoJ to promote EU effectiveness w/out explicitly stating directives have horizontal DE. MS's duty to fulfil EU obligations and shall take any appropriate measure per Art 4(3) TEU.
- Established in Von Colson (1984): job interview w/prison, argued didnt get job for sex discrim, claim upheld by German court,only remedy was compens. Court decide travel expesnes to get to interview under German law. Directive provided for MS to give adequate+effective remedy (vague terms), travel expenses didnt cut it, asserting right against prison+organ of state=vertical,but directive not clear+unambigious so couldnt rely on. Court invented indirect effect req'ing German law to interpret law in light of EU law so V could rely on right. Not saying she can rely on right but same result=an indirect way, for nat courts to interpret. Court used art 4(3) to bring about IE.
- Marleasing: affirmed Von Colson. Spanish civil code confict with EC provision in company law. Directive not implemented by Spain. CoJ=must interpret civil code in light of EU. No diff what came first (EU or nat law) only so as far as poss (not contra legem). Extension + limitation of IE.
- Kolpinghuis: cafe owner prosecuted for non-pure mineral water selling. Directive not implemented yet. Dutch couldnt rely on failed2implement directive to prosecute! retroactive!
Indirect effect..2 (More intensive duty)
- Pfeiffer: max to work=48hrs, German allowed extended 49 hrs=direct conflict. Cant make 49 look like 48. Germans amended law to comply,prob avoided. CoJ: no horiz DE of directives but IE: national courts must 'consider nat law as a whole (inc contracts) to not product result contrary to result sought by directive'=any nat law to be in line with EU law. MS duty=inherent in Treaty.
- Land Oberösterreich: (non-directive case) nat court must fully apply Community law+protect rights conferred, disapplying any provision if would lead to a result contrary to EU law’. Non-discrim of nationality=general principle, no mention of Pfeiffer, Mangold or exclusionary effect?
- Kücükdeveci: 'the requirement for nat law to be interpreted in conformity with EU law is inherent in the system of the Treaty, since it permits the national court, within the limits of its jurisdiction, to ensure the full effectiveness of European Union law when it determines the dispute before it'.
- Berlusconi 2005: AG Kokott: MS duty starts from start of implement, not when date passed. Court held no, duty starts when implement date passed. AG Tizzano in Mangold concurred.
- Adeneler: 2 stage test: Pfeiffer post-implement date full blown vs. serious compromise test during implement period. 1st test=MS bound. Latter test=more diff, nat courts must avoid as far as possible, anything that will seriously compromise directive objective, discussed in Impact 2008, found no serious compromise. No explanation per se of serious compromise.
- Francovich 1991: principle unveiled+established as inherent in Treaty. Further weapon for indiv to use+reason for not reversing stance against horiz DE of directives. Q of damages against the State raised in this case is part of wider controversy over scope of effective judicial protection as an EU obligation upon nat courts. Principle of state liability NOT confined to directives, covers any ‘serious breach’ of EU law by MS causing harm. Confers an EU remedy, not a right. Case concerning failure to implement directive. Protection4employees 4 employer insolvency. Italy didn't implement directive. DE? =not clear, IE?=no nat law to interpret, damages=last option.
- Refined+elaborated in: Brasserie du Pecheur v Germany and R v Secretary of State for Transport ex parte Factortame: rules: 1) EU provision must be intended to confer rights on individuals, 2) there must have been a sufficiently serious breach of the provision and 3) there must be a causal link between the breach and the loss sustained. Cases on German beer purity and UK legislation nationality rules. Held not limited to directives, applicable to treaties and MS acts deliberate and contrary to EU.
1. Confer rights on individuals
2. Sufficiently serious breach
3. Causal link between breach and loss sustained
State liability: rules
1. EU provision intended to confer rights on individuals: Peter Paul narrowed this and failed to find that directive conferred a right. Francovich clearer i.e. for employees.
2. Sufficient breach= Brasserie/Factortame cases: the clarity+ precision of the rule breached, the measure of discretion left by that rule to the nat/EU, whether the infringement+damage caused was intentional/involuntary, whether any error of law was excusable/inexcusable, the fact that the position taken by a EU institution may have contributed towards omission,+the adoption or retention of national measures or practices contrary to EU law.” It seems clear that ‘serious’ means ‘clear’ rather than important/grave per AG Jacobs in Sweden v Stockholm. Can be breaches that are not ‘serious’ + do not give rise to liability in damages to individuals per R v HM Treasury ex parte BT. Some breaches will be treated as ‘per se’ serious per Dillenkofer (lack of implementation itself =serious breach for liability). Question of whether and when breach has occurred may be problematic per Robins, Burnett  purpose of directive to provide minimum protection for old age employees and could not say what 'minimum' level actually is. Doesnt require £ in full. UK found in breach as extremely minimal but nat court to allocate the damages. Includes nat courts of last instance: Kobler (no 267 ref, but unsuccessful as ambiguity+nat court not serious breach/liable but nat court CAN be liable). inc's other state auth's/local auths too!
3. Causal link w/breach+loss: Rechberger (package hols offer ilegally low £ and went bust and no holidays, nat laws on causation not EU rules, no break in chain, Austria liable.