EU Law. Enforceability of EU Law in National Courts. Direct Effect. EU Law and Direct Effects

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Enforceability of EU Law in National Courts Direct Effect A directly effective provision of EU law gives rights and obligations that an individual may enforce before their national courts.

1 Enforceability of EU Law in National Courts Direct Effect A directly effective provision of EU law gives rights and obligations that an individual may enforce before their national courts. It can be vertical invoked against the State, e.g. a public sector employee against his/her employer or horizontal can be invoked against an individual, e.g. a private sector employee against his/her employer. The ECJ adopts a purposive approach but there is a general principle that EU legislation will be non-retroactive (R v Kirk).! S2 European Communities Act 1972 Requires UK courts to give effect to directly effective rights arising under EU law EU Law and Direct Effects Treaty Articles are capable of vertical direct effect (Van Gend en Loos) and horizontal direct effect (Defrenne v Sabena) Regulations are capable of vertical direct effect (Leonesio) and horizontal direct effect (Munoz) Directives are capable of vertical direct effect (Van Duyn) but not horizontal direct effect (Faccini Dori) In order for EU law to be directly effective they must satisfy the Van Gend criteria which provide that they must be: a)! sufficiently clear and precise; b)! unconditional; and c)! leaves no room for discretion on implementation Directives will only be vertically directly effective if (a) and (b) are satisfied and the implementation date has expired (Ratti)

2 ! Ratti Invoked two Directives (relating to the labelling and packaging of varnishes and solvents) as a defence against a criminal prosecution by Italy. Ratti was able to rely on the Solvents Directive as the time limit for its implementation had passed! Verbond If the Directive is implemented incorrectly it will still be directly effective after the deadline However, there may be an exception to this principle and a directive may be relied upon before its implementation date has expired in cases that involve violations which are contrary to the "general principle of equal treatment" (Mangold v Helm). Directives As directives can only have vertical direct effect, the defendant (or employer) must be an emanation of the state under the Foster v British Gas guidelines: Carrying out a public service pursuant to a statutory duty; Service is under state control; and Body has special powers for carrying out its functions (e.g. granting licenses)! NUT v St Mary s School Perhaps not all of the 3 guidelines need to be satisfied, however, the ECJ hasn t ruled on how many is required! Griffin v South West Water the water industry was held to be an emanation of the state due to heavy government regulation! Doughty v Rolls Royce Not an emanation of the state as it wasn t under statutory duty nor did it have any special powers The Attorney General in Faccini Dori tried to compromise on the position regarding the direct effect of Directives by asking ECJ to allow newly published Directives to have vertical and horizontal direct effect but this wasn t taken on board. Indirect Effect

3 The doctrine of indirect effect was developed in Von Colson and subsequently Marleasing. The principle holds that national courts are under a duty to interpret national law in line with the aims of any relevant EU law, whenever passed. Development Article 4(3) TEU requires Member States to take all appropriate measures to ensure the fulfilment of their Union obligations. In Von Colson, the ECJ ruled that this requirement falls on all authorities of the Member States, including the courts. Thus national courts must ensure that they interpret national law in such a way as to ensure that the objectives of a Directive are fulfilled taking a purposive approach. In the UK, the courts ruled that when parliament passes national legislation intended to comply with obligations under an EU directive, it will be interpreted to give effect to that directive (Pickstone v Freemans). The courts may even imply into the UK legislation extra wording to give effect to the directive (Litster). However, the same rules didn t apply to non-implementing legislation (Duke). The case of Marleasing removed the distinction between implementing and non-implementing legislation. So now any UK legislation, passed before or after the Directive, must be interpreted in line with the EU law (Webb v EMO). If there is clear conflict between the legislation and directive, the courts will not be under an obligation to do so (Wagner Miret).! Pfeiffer National law as a whole should be interpreted so that it isn t contrary to the result sought by the Directive! Luciano Arcaro Member state cannot rely on indirect effect to impose criminal liability on individuals on the basis of incorrect or non-implementation State Liability

4 State liability in damages for breaches of EU law was introduced in Francovich v Italian State. The reasoning was if a claimant had suffered a loss, and the Directive had not been implemented properly, then they may have a claim against the state. This principle is extended to cover any breach of EU law (Factortame IV) Non-Implementation A total failure to implement by a member state is always sufficiently serious when they have an obligation to (Dillenkofer), in which case the test in Francovich is applicable. Criteria: 1)! The directive confers rights on individuals; 2)! The content of those rights are identifiable from the directive; and 3)! There s a causal link between the state s failure and the loss suffered Faulty Implementation Where the state has implemented the directive wrongly, then we use the reformulated test. In Factortame IV, the test for state liability was reformulated as: 1)! Breach infringes a rule of law intended to confer rights on individuals (Kobler); 2)! Breach must be sufficiently serious; and 3)! Direct causal link between the breach of the state s obligation and the loss suffered Sufficiently Serious A breach is sufficiently serious where the Member State concerned manifestly (obviously) and gravely (intentionally) disregarded the limits of its discretion (Factortame IV). This would be assessed as in ex p BT by a)! Clarity/precision of the rule breached b)! If the error was excusable or not had others made a similar error c)! Any position taken by the Union's institutions e.g. the Commission d)! Any guidance in case law by the ECJ

5 ! Factortame V It was sufficiently serious because the government intentionally breached the provision in question! Dillenkofer Non-implementation by a member state is always sufficiently serious when they have an obligation to! Hedley Lomas Liable for failure to perform administrative acts as well as legislative. This involved failure to grant export licences contrary to Art 35 TFEU! Kobler v Austria Where a court of mandatory jurisdiction has incorrectly failed to make an Art 267 reference, the breach will only be sufficiently serious if failure to refer was made in manifest breach of ECJ case law The final decision of state liability would normally hinge on whether the breach is sufficiently serious. Remedies The basic principle is that national courts should use the nearest equivalent national remedy to protect an individual s EU Law rights. National courts must bear in mind the following rules: a)! The remedy must not discriminate between a breach of national law and a breach of EU Law b)! National law remedies must be effective to protect EU rights These principles are often referred to as the principles of equivalence and effectiveness. Supremacy of EU Law (Essay Plan) Van Gend en Loos Established a new legal order whereby EU law was supreme over national laws Costa v ENEL A directly effective EU law takes precedence over conflicting national law regardless of when it was implemented Internationale Handelsgesellschaft A directly effective regulation (secondary legislation) took precedence over the German constitution (Bill of Rights)

6 Factortame II Court suspended national law that was incompatible with EU law Werner Mangold Here the court set aside national law that breached the general principle of equality (not an established law) It is also worth noting that in the UK, EU law is only valid by virtue of an act passed in most cases (EU Acts 2011). The parliament arguably still has the power to accept or reject any or all of the EU law.

Luca Prete. Référendaire, Court of Justice of the European Union. The views expressed in this presentation are strictly personal

Luca Prete. Référendaire, Court of Justice of the European Union. The views expressed in this presentation are strictly personal The role of the national judge in applying the EU anti-discrimination directives: relationship with national legal orders and the preliminary ruling procedure The views expressed in this presentation are