Scribd Logo
Upload

Welcome to Scribd!

  • 12. Paul Craig, Grainne de Burca, EU Law - Τext, Cases, And Materials Ch.7, Oxford University Press, 2011

    Uploaded by

    mtwdrm
    100 views38 pages
    Paul Craig, Grainne de Burca, EU Law - Τext, Cases, And Materials Ch.7, Oxford University Press, 2011

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    Paul Craig, Grainne de Burca, EU Law - Τext, Cases, And Materials Ch.7, Oxford University Press, 2011

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    100 views38 pages

    12. Paul Craig, Grainne de Burca, EU Law - Τext, Cases, And Materials Ch.7, Oxford University Press, 2011

    Uploaded by

    mtwdrm
    Paul Craig, Grainne de Burca, EU Law - Τext, Cases, And Materials Ch.7, Oxford University Press, 2011

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 38
    THE NATURE AND EFFECT OF EU LAW: DIRECT EFFECT AND BEYOND 1 CENTRAL ISSUES |, Thedoctrine of ‘iret effec’ applies in principle to all binding EU law inchading the Treaties, sc ‘ondary legislation, and international agreements. The most problematic issues concern directives and international agreements! |i. Themeaning of direct effec remalns contested, In abrond sense it means that provisions of bind {ng EU law which are suffcienty clear, precise, and unconditional tobe coasidered jusicable ‘an be iavoked and relied 9 by individuals before national courts. There i also ‘narrower or classical concept ofdcect fect, whichis defined in terms ofthe capacity ofa provsion of Union law to confer rights on individuals, ‘While directives can be enforced directly by individuals against the state ater the time Fmt for tele implementation hae expced (vertical direct effect), resulting where necessary in the dsapll- cation of conflicting domestic av, the BCI has rule that they cana of themselves impose obiga- tions on individuals (no horizontal direc fect). The rationale for this limitation on direc eect of directives is however contstable. lv. This is more especialy so given that othe legal mechanisms have been developed bythe Court to give effect ta directives which have nat properly been implemented or are not being properly applied. Fst theresa broud obligation on national courts to interpret donmestilaw 8 far aspos- sible, in conformity with directives (indirect effect) afer the time limit for thelr implementtion has expired. Secondly, during the period after adaption ofa directive but before the time limit for Implementation has expire, all organs of the sae, including courts, must refrain fom adopting any measure or Interpretation lable seriously to compromise the result prescribed bythe directive. “Thirdly a directive can in certain cases be legally invoked inproceedings betwen private parties (oeidenal effet) so longa the dizetive doesnot i itself impose a legal obligation on one othe partes Fourthly, a general principle of EU law that coversthe same ground asa directive canbind private partes. Finally, where a regulation refer to a directive and makes compliance with the ‘directive conditional on receipt of benefits under the regulation this can bind privat parties. ‘The numberof qualifications to the rule that directives do not have horizontal direct effect. and the dficultes ofeach exception, has made this area of aw increasingly complex and difficult to understand, even fr expert let alone ordinary privat parties, * tele eect ofttrationalpreents ie conidre ia Ch 10. DIRECT EFFECT: A GUIDE | 1 2. DIRECT EFFECT: A GUIDE ‘The topic dealt with inthis ebapter is central to EU law. Ithas been devslozed by the EC] and its Jurisprudence has become more complex aver the yee. The discusion in this section is therefore designed to help the reader navigate through the dificult waters that le ahead. Or, ifyou prefer adit ferent metaphor, regard thissectionas programme notesto render the scenes fa complex pay more readily understandable. This gall the moreso since, 0 wil be spparent, the tory i stil unfolding. (0) The starting point isthe distinction between pubic and private enforcement. Law can be enforced ether through apublicarm ofgovernment, which accorded power to bring ifring- «esto court, or through actions brought by privat individuals, or an admixture of the two. The “Treaty hasan express mechanism for public enforcement in Article 258 TEU, allowing the Commission to sue Member States before the EC) for breach of EU lav This compulsory juris- diction was wousual, since most international treaties contained no such mechanism. There are however limits o this mode of enforcement: the Commission did not have the capacity t0 ‘prosecute more than a tiny fraction of posible infringements; the remedy under Article 169 BEC, the original versin of public enforcement, was weak; and the Article could not be used gains private individuals (2) The ECT therefore took the bold step of leitimating private enforcement. It held that Teeaty Articles could on certain conditions have lrecteffect, such that individuals could ely on them befocetheir national courtsand challenge national action for violation of Community aw. This ‘hereby brought individuals into the Community legal order, The domestic efecto an interna ‘ional treaty was traditionally determined by ce constitutional lw ofeach stat party to that treaty In countries which adopt a dualist approach to international lav, international agree- ‘ments do not of themselves give rise to rights tet citizens can invoke before national courts, Sock treaties bind only the states at an Intergovernmental level and, in the absence of imple- ‘mentation, cannot be directly omestcally enforced by citizens? The eriginal Member States probably fl thatthe EEC Treaty would be treated in the sme wy. Tht EC) nonetheless held that the EEC Treaty was diferent from other treaties and that individuals could derive rights from its provisions, which could be enforced at national evel (0) There was, however, from the outset wicertainty about the exact meaing ofthe term direct Affects tis posiblecn the basis of the ECYs caselaw to adopt ether beoad ora narrow defini- tion of dzect effect The broader definition, which can arguably be derived from Van Gen en Loos, can be expressed asthe capacity ofa provision of BU law to be imoked before a national court? This is sometimes referred to as ‘objective’ direc effect” The normal consequence of * Paig“Once upon a Tien the Wet Diet ect nd the Feerlnation of BECLan (199) 120118453 2 D¥vyate New Leal Orde of Oi" (982)7ELRev 1 * see te ese dscsson of ferences in meaning bewees the terms ‘iret apis and rec effet, whic the HC ued interchangeablp'T Wiete Die Applablty an Dctt Et’ C972) 9 CMe #5, Case 13179 Solo 1980] EOR 185, 1608-1608, Warner AO} ese C2300 Mu v frame Lt 200] BCR i-7299, (Gelhaed AG? Bef, The Direct ect of Com must Lave Cot-pls! tamer (19616 YBEL 205, Sorcha ‘Does Dect fe Sul Maer (200) 37 CMLRe 147 Dirt n Ln (Oxford Ualvesly Pres td ed, 200}; M Lens, D Tyne, and Youn, Herzl Wha? Back Bse (20) 35 Rev 59, Hoa nT Downes, Making Sens Of Rights omy igh in Eta (1999) 24 ELE noe 262 Van Gene Loos 963] ECR te ECT ruled hat Art 2 shold beimterreted arproducigdst fects cresting inva ips tmp tt the ater loved om, bt mas a sees cnion fon there, * 'W van Geren, ‘OF Rights, Remedies and Procedure” (2000) 37 CMLRee SO; D Esvard ‘Dist Eft, tbe Sepraion of Powersand the Jaa Enforcement fOlgntont in Sita Onrd Gppe ederce Mann Dirt da Union Barpen Cal 198) 25, legal provision being invoked, asin Van Gand en Loos i that it confers a legal right on the individual who invokes bu this is not,on te broader definition, an esental component of. dicect eet. The narrower ‘classical’ definition of direct eet i usually expressed in terms of ‘thecapacty ofa provision af EU law to confer rights om individuals which they may enforce before national cours. This i semetimes referred toas subjective’ direct effect. The degree of difer- ‘ence between these formulations depends however on the definition of ‘igh’ being used. If ‘whats meant is simply the right o invoke BU aw in ational cous thea theres litle difer ‘ence between the narrowand the broad notions of direc effect In many other cases, however, ‘the EC} has gone beyond the simple reference to tight to invoke, and bas indicate that an individual itigan can rely before a national court on the substantive ight, suchas the ight 10 ’be fre fram discrimination based oa nationality" Moreover ifthe ‘conferral of rights on ind ‘vidal’ involves the enilement oa pasticuler remedy! or the imposition ofa corresponding duty or Hinbility on another party then there may well bea zelevant difference between the ‘road and the narrow definitions. In elit, the EC) seems to use the language of'conerral of right’ in the context of deec effect in several diferent senses. Thas even the narrow defini- ton of direct effect in subjective terms as ‘the conferal of individual rights isnot particularly precise, given the ambigaity in the notion of ‘ghts: The ambiguity inthe meaning of direct ‘effect isnothowever ofpurely academic intrest, thas, as willbe seen below, important pract- Sens, Cave 32/8 Setar Grima» ands der Maldron 945] BCR 4 Gane Gat Aneta Agricola Mote Arco vRegoneAuoroma dla Sardegna 2001] BCR -103in which 1 provisions ofa reg ware ot stile pecs and teeore cold ot be lel relied pon. Compute Case (Ciara Herbert Hanser Gob 200) BUR -671 I-09), Su Gelhoed AGadicun ofthe rtonhipbetwee the diet plc of rovsansfaregand ther diet tin era oft eapay fii invoke and ees om hoe provions, In Case C200 (0. Case 972 Comizton vt 1973]ECR 10 7) % Gate ©-25/00 Maas a4) 7 Cae C-379104 Debs Gb» Fenkinche Weinauvehand eV (2008) ECR 1.975,11. Cate 5076 Amtedam Bull BV vPrelaachep ror Slerewasen 977] BCR197 Care C4098 Aen rzle Mowe Ara (93936, DIRECTIVES: DIRECT REFECE | 191 (8) DECISIONS “The Treaty wording in relation to decisions has been altered, Article 249 EC state that ‘a decision shall bebinding nits entirety on those to whom itis addressed’ Article 288 TFEU now states that at ‘Adocision shal bo inding nits onto. A decision which spetiiesthose to whom tis addesse betinding oniyon thee. “The relevance ofthis change and the diffrent forms of decision were considered in an easier chapter?” The ECT in Grad had ltl hesitation in holding that decisions could be directly efec- ive, despite the fact that Article 249 EC made no reference to ther ‘direct applicabllity¥ In an oftenrepeated phrase, the Court ruled that it did not fellow from this ‘that other categories of legal ‘measures mentioned i that Article ean never produce similar effects, and it rlied on the principle of effectiveness to conclude that decisions could in suitable cases be invoked by individuals before ‘ational courts*! Returning to our caller discussion ofthe narrower and the broader conceptions of direct effect, ‘the EC} in thisadgment discussed direct effect in terms of the right of an individual to ‘tmvoke the ‘obligation’ created bya decision beforea national court, the Broad notion ofinvocabiity,but also spelt ‘out in some detail the substance of that obligation, the more precise notin ofconferal of right. It ‘will however, atin the context of regulations, be necessary to show thatthe particular provision ofthe decison is suficientl certain, prize, and unconditional fr direct effet “The paradigm ease will Involve an individual who invokes a decision against a Member State: vertical dlrect effect. The BC} is reluctant to conclude that a decision addressed to a Member State ‘an produce obligations enforceable agalast private parties horlzontaldrect elect. Thus in Carp® the EC held thar a decision addressed to Member Sates specifying the conformity procedures apli- cable o certain building materials didnot impose obligations on private parties. Ths conclusion is ‘einforcedby the wording of Article288 TEU, which now statesthat decision which specifies those to-whom it is addressed i Binding only on them. A decision can hawever be addressed toa private party inwhich case it willbind the addressee, and thsis reinforced by the wording of Article 288. In such cess the decision may create horizontal direct effect between private parties, provided thatthe obligation speifed is sufclenty precise, certain, and unconditional 5. DIRECTIVES: DIRECT EFFECT (9) DIRECT EFFECT OF DIRECTIVES () Foundations: Van Duyn and Ratti “Thekey reason givenby the Court forthe direct effect of Teaty provisions was that the fondamental sims ofthe Treaty would be seriously harapered its provisions cold nate domestically enforced by those affected. ‘The explanation forthe direct eflect of regulations was more straightforwardly textual: Article 288 TFEU specifically provided for thelr direct applicability, fom which the Court oh. ‘Cate 9170 Frans Grad Financ emt Taunton 1970] BCR. “Ibid Case 2995 Auk surg ination dr Linde GmbH & Co KG Bundeantl ir lad site Marktondnn 1907) BERABAS, 7 CateG-1569 Hane lees 20) 5). "a Seng. Ca 1108 Fossey Sed-Ouet SARL v Admniaion des duane dot indies (2008) ECR Gate C8006 Carp Snel Mole Cor cred (2007) EOR 473 [91-2 + is, AG Teme Cate Becker Finances Miter Iaensad 982] BCR Case C1653 Vans Le oye SA(994) BGRE-76, 8]-(19} CaseC-1S691 Hans lick (n 20) 0; Case C- 14/00 Ambulaner Pfgeiens Ragler Gb ‘Banca fr Koper ate C-46/06 Navarro Fondo de Gato Saari (Pegs) [08] ER ‘Dantzig 2009] BC. 1-988, 24-30 Gace C-13196 Inter BvromamentWallonieASBLv Région Walon 1987] ECR I-2LCass C-378-98007 [ial Angele ond Oto: Ogetames Nemes todas ath 2009] ECR-971, 206, ‘0 Gases G-261 and 29907 VTEVABNV Total Bolum NY [208] BCR 294,811) Gane 44/06 Mand alm (2005) BCRI-958,6)-178). 1d 7H, Caza 6100 Marks Spencer» Communes of Customs Bese 2002] CRIA 635, [2-2 ced by Rafer, 005 <0 CM Lay 72S Drak, 203] 25ELRev 418. 1 Mocsves adi even pleaded ys indviaa onlygaina the tate canot of teresa the npostio of ‘civlbliption snes Cae C2002 Wel vSertry of Slater Tranaprt, Lael Goorhmet nd ‘he Regine (206) ECR 172,157) 158) DIRECTIVES: DIRECT BEFECT | 195 ‘Area Health Authority (Teaching) (n9ge)E0R 723 [Wote Liston Treaty renumbering: Arts 188 and 181 are ow Arts 288 an6297 TFEU) Holon Marsha wos dsmissed after 14 years’ mpoyment by therespondent heath suharty on the ‘round that she hed pessed 60, and the Authority's policy requied female employees tort at 60 and mle employees st 65. Navona legislation imposed no bgnton on wornan to treat 60, but athe iit poh employes from diserminatng on grounds of sex in retrament mates. Macehall argued however that hor dismissal vicated the 1976 Eque! Teatmant Directive, an the rains! cout askad whothar she could ely on the Directive agsnst the Health Authory, Advocate Generel Siyan ‘suggested that to gve“horzona effect to directives by sbewing them to impose cbgations directly ‘on an ndviual would ‘totaly blur thectnetion between decves and equation’ established by stheTrean THEECS 48, With regard tothe argument hata roctive ay notbe relied ypen against an indivi it mst bbe emphasized that sccording to Atco 189 ofthe EEC Treaty, tha binding nature ofa crectve, which constitu the basis forthe possibilty of relying onthe drcivebeors@ national cour, exists only tn elation to ‘each Member Sate to which iti adassed. flows tha rectve may not of eal Ienpose obigatone onan incividal and tha a prewsion ofa cceciva may not be reed upon as such against suc 8 person. A.number of rationales have been suggested as to why directives should only have vertical and not horlaoatal direct efect. ‘The reason given by the EC in Marshal wa textual based onthe wording of Article288. Thereare however two dificulties with thisargument. (On the one hand, the ECV’ reasoning i debatable in textual terms. The wording of Article 288 merely signifies that a Member States bound bya directive only fmentioned therein asbeingbound, bby way of contrast to regulations that bind all Member States. Itays nothing one way orth other as to whether, ifa particular Member Stat is bound bya directive, the directive might also impose an obligation on private individual. (On the other hand, the Courts textual fidelity In this contest contrasts with its approach to the direct effectiveness of certain Treaty Articles which ike directives, ar also explicitly addressed only tothe Member State. Article 15? TREU, for example, is addressed only tothe Member Sates, provide {ng that states are to ensure the application of the principle of equal pay for male and female workers. Inthe ist Defrenne case, however, the EC] dismissed theargumentthatwhatisnow Acticle 157 could ‘erelied upon only a against the stat. Itheldthatsinee‘ArticleI:9ismandatoryin nature, theprohi- bition on discrimination between men and women applies notonyto the action of public authorities, ‘but alo extends toall agreements which ae intended to egulatepsi labour collectively aswell ast contracts between individuals" The same reasoning has been applied to other Treaty Articles. ‘A rule oflaw argument ha also been used against the horizontal ditect effect of directives. Thus Advocate General lynn ia Marshall was concerned about theft that directives were not required, 2 sae) scars 74 Case s878Defree 02 © Seeep. Ca 2893 Angonee Css di Riparmic Blo [20] ECR M415, [2]-[36} Case C4805 Viking Line Section 0 bore ani ater the Maastricht Testy, tobe notified or published in the Oficial fours The great _nsjonty of dretve were however published and the requirement of publication snow contained im Article 297 TFEU, Moree al drectivs contain ime limit fo hr implementation, thus reducing the rale-ofaw conn. ‘A thedargoment i hat horizontal diet of directives would erode the distinction between regulations and directives. This ssid to be becase directives would thereby have legal impact, ven though they had not bee implemented nthe Member Sate, thereby eroding the disieton between regulations, which re diet applicable, an directives, which ae not The argiment is however rablematicInofarariths forces eqaly tr of erica iret efect of dese. To accord direct lect to dcectives doesnot however in reality erode the distinction between egla- tions an crectves. Te key aatinetion beeen the two Instrument Is hat Member Sates are intended ohave choicest form and methods of implementation for drecives: Giving diet eect to directives, whether vetes or horizontal, ot ntended to undermine this. Irs ot intended takeaway thichoie es merely expresive ofthe fandamentel proposition theif sic iment. ingmeasuesbave ot been erctd within therequied ime then the binding end puted inthe ditectvecan il be eforced provided that they are sufiienly certain, precise “he final argument aed gana ornontl rest eet ea certs. Tir wa the ntionale siven in Wells? the relevant paragraph of which has been cited in stbequent aes, bt wthoat Specfcally mentioning il ertalny Ie is oweveroncear whether egal eran tthe policy ‘ational forthe textual int considered bove or whether itinan independent normative etn or Aenyng horizontal dec ee. Safice to sy the falling conering thisargment Ff tctves were tobe capable of horizontal rect ett thi woul onl apy ifthe evant poisons teally were sufficiently clesr, precise, and unconditional, Secondly, the meaning of legal certainty in thiscontentisunlearsnce the EC) has povided no elaboration There ishawever ao psusiblemea- ingofthatterm hich explain the rejeeonoforiontal iret eet of detves Thirdly threo byway of contest vere prebems oes certainty withthe doctrine indirect eet ndineden tale whicharethe major gulieatons othe abtenceofhrizontal diet efecto dretnes™ (©) EXPANDING VERTICAL DIRECT EFFECT: ‘A BROAD CONCEPT OF THE STATE ‘The ‘doctrinal rule’ that directives cannot have horizontal dizeet fet leads to discrimination ‘between the private and publiectors.” In Marchallthe Court concluded that the complainant could neverthelest rely on the provisions ofthis dicective a agnnst the Health Authority, since it could be 49, Inthat respect it must vs pointed out tat were «person volved in egal proceedings able toraly ona deca as agains tho Stat ha may do so regardless ofthe capeciy in which he ltrs ‘acting, whether employer of ic authrity. In ether case its necessary to prevent the Stat from ‘aking aeantageof town far o campy with Community kw 1 case s2 986 BOR723; Se aio Case C1089 Seine Statarretre vo te1990}ECRI-S4, © Case C0402 Weis (265 Cane C-397-40301 Pier etches Rte Kus, Krlverband Waldsut eV [2004] ECRI-BES, IC Coes (C-St-15407 Arar AG Go RGuadthersy ane Pavan 20D] ECR 98%, 8) “7 Craig he Loa ecto Deectivr: Ply Riles nd Exception (208) 4 FLReW 38, 35-354 te 30-366, Rissoinn‘On the Disa Pegiple of Equal? (199) SEPLAT 7 Sevan Case C4399 Jn Mager Ayuntamiento de as Baris 201} ECR1-4915, 2} Between Vertical an Horton Direct tof icsives What Re forthe 5 The argument submitted by the United Kingdom thatthe possi of eying on provisions of the directive aginst the respondent qua organ ofthe Stato would gve rae to an arbiuary and una D eatin The Proviocs of Goverment Deming he Diet Bet of irc nthe Comin Law Context (1890) 1S LRG ase Seyecaak, outer Belch Gs 199) 27 MLR 09. 198 | THE NATURE AND RFFECT OF EU LAW: DIRECT EFFECT AND BEYOND tha body wih hr ben made pono proving pub ec under cot he Ses lated within te Edenton fa lcbdy eeu claw aye tine Mind sno sur pitta artate Sore te] Pe na prc oy uty edhe ea rhe pursing iene "ond rang oles as ben iced nthe tate tte ppt icing cabo seen tired nds prathedusderakganveerte ere ea Mth attache an opin win thet ir owe ope roves credit rita en ping prove oe a hich coe iy he stmethigwhihhas een eevee cnn de et” Te bd meen ft cones non oft ems oe wih he fa to ese te eect ences tatu eves ese nites da ae pec becmae eon names ply oo eine orl ae ‘Nem BUlpararebound apy the proven ef desta hema tthe Paseo reed tv nc of ato esas respon whey bay th ight eroded sone wy escomnested ih hese alrerpontbitrs allots ual. hehe econ cert cet The htt he pict Ste sie sess scot fr xp shea ethory eran pec pwn and exer sme ote ove hater wart tae epg erie eine su te te oa ident ety Tirole eso te degre ofp owes contr may wry one get for pepe oh fate power ove Inpementton a he dear an th conecon betwen he aes of the pec owe coal and the nto ape dee eve far fo icone Advent Gent as cpa hs cl, ting hth ver broad interpreton of these mean hat dts could efor even spas commer enters heer ‘us ome cement fe art or cota ettandng tht thw eps re to vous forthe Scot Member Scag hy might oe Inde compel ih peor ndeaking’ lt wie etme dete se ot ‘ofc ted thenstinetet it hep sep yf nga Indy watever owes hs Ben gen bythe Meer Se at thelr ny Slonld beset evict fn» date, een hog tna a ec cnc enter owes nd yg do ith Bln ade tap te lan Cnuwahng spo more otra or por oes tnplenetono te tenn ony Patina % Cate C-36198 Colin & chispyre» Telcom Ill [2000] ECR 1-668; Cass -258-25896 Kamp andshateerand Westfalen Lippe 97) BCR e907; Cses 172 ad 175-17788 Salamander Parlament Counc 00] BORTI-247 Case C-2865Fertly Alan Whit, Anite fr the Evironment lend [2007] ECR Sosy, 704, "Case G-819192 Schl v Opera Unvrstara d Cala {1994 BOR -SU% Case C-15702 Reser (a5) [2-294 ‘caseG- 1604 Vnloy Astra spedalera Ospedale Sn Marina di Geno [208] ECR-725, [2] CaeC-S304 ad ard Asien Ospedale Ospedale Son Marino di Genova elinche UivrtareComenconae [aod BCR -7213¢Case 6s MeipacKezaids AB Venice Ponanei(PESY.KRITS) 2007} ECRI-A857, {Hp Cats C-250and 26809 Googe» Teicher universe - Safi Poa1 Now 200. Care 0/8 Patel Cotas Spa Camane Milano 1969] ECR 183, [I Cate C249 Gtr uf Stadt ae, 1804200 03 de Wit, Die Ec, Supremacy and the Nature of the Lge Orden P Crag and G de Bical, The ‘rout of BU Law (Oxford Unversity Pres, 2d ea, 2) ch 1% Cases C-246-269194 Cooperate Agricola ‘oatciea (030 Cate C683 Vane (563, cob AG. (0) VERTICAL DIRECT EFFECT: TRIANGULAR SITUATIONS "The EC] has thus given an expansive interpretation tothe concept ofthe state forthe purposes of vertical direc effect. Ithas also made it clea that vertical direct eet isnot precluded eves ifthe application ofthe directive agast the Member State wil be certain to lead to adverse consequences forthe individual This i known as the eangule situation Case C-201/02 The Queen, on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions. (200s) €cR 1-723 ‘The case concemed Directive 85/37, It required assessment of the effects of publc end prnate ‘ioe on the anvvanment before rlanning consent was given. Planing parmision was given for ‘ining operations without such an assessment. Wells sought the revocation of the planning consant ‘onthe round that tho directive had not been compled with THEECS 55, Aecorog othe Unitas Kingdom Government, aceptanoe that an cveuais ened o inves ‘Atle 2) of Dvetive 88/997, readin conjunction with Ales 12} and 4(2) thereof, would amount ‘o 'werse dec effec’ crac obliing tbe Memiee State concerned, athe aquest of a inivicual, “such a Ms Wells, to deprive nother individual or individuals, such asthe cvners of Conygar Quay, of tai gts. 156, As to that submission, the principle of legal certsinyy prevents direcives from creating ibigntons for navdusls. For them, the provisions of @ dective can only create rights soe Case "62/84 Marshal 1986] ECR 723, paragraph df). Consequenty nincvidul may ntrelyonacitectve geist « Memb State whare i isa matter of Stat olgation dec Inked tothe perfarmance of ‘snotner obigeton fling, pursuant to thatceetve on ath patty ee, tts effect, Case C-271/88 ‘Busser [1990] ECR 1-495, paragraphs 23126, nd Caso C-87/96 Daihatsu Doutechand [19971ECR |-8843,paragreohs 24 and 28. 157. On tho athor hand, mere adverse repercussions onthe rights ofthe partes, even i she repercussions ar certain, do not justify preventing an individual from invoking the provisions of & ‘irectve sais tho Member Stato concerned (se to this effect, in parr, Case 103/88 Fatah (Costanzo [199STECR 1999. beragras 261033, WWF and Others ted above, paragraphs 69nd, (Caso C-194/94 CIA Security Internationa [1995] ECR I-2201, peagraphs 40 to 55, Case C-20194 ‘Smith & Nephew and Primecrown [1996] ECR 15819, parerapns 33 to 39, and Case C-443798 UUsiover [2000] ECR 1-7535, paragraohs 4510522. '58. In the main proceedings, the obkgaton on the Member Stato concerned to ensue that the competent authors carry out an assessment of the environmental effects of the working of the quay a not erect linked to te performace of eny oUomion veh would fl, pursvan to (ect 85/237, an the quarry owners. Tha fect that mining operations must be haliod o wait the ‘eau ofthe assessments edited the consequence of the beled performance of tat Stok's ‘obligations. Such a consequence cannot, howover, as the Unita Kingdom cles, be deserved as “worse diac fect’ of the provisions ofthat ectiv in celatin tothe quarry owners. © Sete Cases €-152-18407 Aron. 6 DIRECTIVES: LEGAL EFFECTS ‘The EC] has developed a numberof doctrinal devices that have educed the impact ofthere not being Ihoriontal direct effect of directives and rendered this area ofthe law increasingly complex. It has done sobyrecogaizing legal effects of directives even though they donot have herizantal direc eet. Risto these strategies that we now tur. (a) ‘INDIRECT EFFECT: PRINCIPLE OF HARMONIOUS INTERPRETATION () Obligation to Interpret National Law in Conformity with Directives ‘The most important way in which the EC} encouraged the eectivenes of directives, despite deny- sng the poisibility of direct horizontal enforcement, was by developing a principle of harmonious inteaprefation which requires national law tobe interpreted inthe ight of directives. Vr Colson is leading axthority ‘Case 14/83 Von Colson and Kaman Land Nordrhein-Westfalen 1984) ECR eat [Note Lisbon Treaty renumbering: Ar 189is now Art 288 TFEU] “Tha EC ld thatthe Equal Treatment Directive on when the pli rled inthe caimofulawht ‘sax kiszrrsnaton was not suificently precise to quaantse them 8 spect emedy af appointment to ’ post, bat it wonton fouls on wat eect ho drective's ims might nonathalesshave onthe inte rotationot national lw. THEECS 26, Hewave, the Membor Stas abligation arising roma sroctive to achieve the result envisaged bythe ciectve andthe duty under Arete 6 ol the Treaty to tke al approprote measures, whathar ‘Seneral er particule, 10 ensue te fulhliment ofthe obigaio, i binding on a the authriios of ‘Member Stats including, fr meters within ther jiscicton, the cowts. It foows that ia anoying ‘he nation! law ed in particular the provisions ofa navonal ew spacial inveducod inorder 10 implarnont Diectve No 78/207 nena courts ara required to iterret he national aw in tho bight ‘ofthe wersing and the purpess ofthe Dective nord 0 achive te resul refered to inthe tid oragre of Article 189. 26, ..tis forte national court interpret end epply the leptin acopted forthe implementation ‘ofthe rete in contxmity withthe requromentsof Community law, so fer asi gvancisceation todo so under rational. ‘The Courtin Von Colzon expreslyidentied the national courts a organs ofthe state responsible for fulfillment of Community obligations, and encouraged the German coart to supplement the domestic legislation, which did not on its face seem to provide an adequate remedy, by ead fing i in conformity with the Directive's requirement to provide areal and efectve remedy. The case also nakes clear thatthe doctrine of harmonious interpretation, or ‘indirect effect’, doesnot requice the provisions of s directive to satisfy the specific justciblly elteria (laity, pression, ‘uncondiionaity) for direct eface “The principle has been strengthened overtime, with the Court declring it 10 3@ ‘inherent in the «system ofthe Treaty, derived from the obligation in Article 43) TPEU, and an aspect ofthe require- ‘ment of full effectiveness ef EC Ia whieh applies not oly to national courts, bat to all competent suthoriis called upon to interpret national av. “The date at which the interpretive obligation arose was unclear until lative recently The gen- ral principle i, s sen above, that vertical direct effect ofa directive becomes operative when the time limit for implementation has expired subject to the duty to eefrain in the perod prior to exp- ‘ation ofthe time limit from taking measure able seriously to compromise the sult prescribed by the directive A number of Advocates General had argued thatthe obligation ofhaemonious inter- pretation should apply befere the expiry ofthe time limit for implementation. However, in Adencler, the EC) finally addressed te point dicerly and rled that, wherea directive 'is transposed belatedly, the general obligation owed by national courtsto interpret domestic law in conformity with the direc- tive exists only once the period forts transposition has expired’ However, the Court alo hed that the obligation on the state to refrain even before expiry of the time limit, from measures ible to ‘compromise the result sought by the directive meant tht from the date when the directive entered {nt force, national courts aust refrain as far as possible from interpreting domesic law ina manner ‘which might seriously compromise after the period for transposition had expired attainment ofthe ‘objective pursued by that lrective?® (i) Vertical anid Horizontal Application of the Obligation Von Colson concerned a directive which had been Inadequately Implemented" and the case was ‘broughtagninstastate employer Latercaseshowever established that the obligationrequresa national court to interpret mationa! law in the light of an inadequately implemented ora non-impiemented irective even ina case against an individual, thus side-stepping ina certain way the prohibition on horizontal direct effect. "The Marleasing case cencerned a ‘horizontal’ situation involving two privaz parties before a domestic cour, where the interpretation of national lw inthe light ofan unimplemeated direct ‘would not impose penal isbility, but was likely to aflect its egal position ina disadvantageous way”? ‘This judgment confirmed that an unimplemented directive could be relied on to influence the inter- pretation of national law na case between individls. cate T23708 Abadi Reser, SA » OREM, 1 May 2010, [67 Cote C-6809 Sng Pst lane Sp, 24 Jane 2010 (61-15). (Cae C-160% Max 0) ECRI-£79 4; Cases ©-397-4080 fra 1 Case C-2801 Henke Gad (2004) ECRI-1725 (60, ' Mlamer, dil Implementation of Dieter and AniptoryIndect Bet Conncting the Dow (2008) sscutner 25 0056, 1 Case C1296 Itr-Bvannament Wellone(0 5) WS] Case C1570 Rizr (0 50 [6 See Cis 86 Kula pmegen 1587) ECR 3963, [Case C1380] Hansa Fecha 2 23, Jacobs AG, ase C1069 Marling 52), Van Garven AG; Case C480 Mange (x 9) 11), Tlzan0 AGC (Catsoa Wipe Pek Clopperburg 008) ECRI-S48, [9-63], Koko A. Case CoB1I04Koitntor Adel al lier Organon Galaltr (106) 2006]BCRI-6O57, 15, 23). 1 Seclao CaseC-42/02 Hakermann-Blemannv Arbeterwolht,Bsksrerbnd [99] ECRI-1657. 1 Gere, The Prineplect indirect Beet of Commun Law (1995) 3ERPL-M Amat To-Batween Worl Marcsing sth Emergence laterality Le! Rezoning (2005) 181768. 202 | THE NATURE AND EEPECT OF FU LAW: DIRECT EFFECT AND HEYOND Case C-106/89 Narlessing SA La Comercial Internacionale de Alimentacion SA [o9so} ecR 4138 [Note Lisbon Treaty renumboring: Arts § and 189 EC are now ‘Art (9}TEU and 288 TFEU) “Th plentt company bought proceedings against La Comecil to have the defendant company's cos of sssoction dochred vidas the company was crested for the sole purpose of defrauding ‘rears Tha provisions of he relovent Counc Derive didnot include his "ack ofcouse' es ground “ar the nlty of compen whereas the Spanish Civ Code proved for tho intfectwaness of con- ‘rae for lack of cause. The Spanish court refered the caso tothe ECJ, asking whether the Counc Diactve cout hve creole bawean incvidual so as to preclude the decsraion of uly ofa ‘company on grounds otherthan thor set out inthe Directive. Advocate Gener Van Gorven argued that th clipstion to nteenetorviion of national win conformity with a doctveanoled whens ‘ver the provision in queston was fo eny extent open to interpretation in accordance with methods recognized by nation THEECS 7. However, its spperat rom tho documents befor the Court thatthe national court soaks in substonco to sszertan whathar@ natal courthearing case which ls within the scope of Directive {5/181 required to intrpatits rational la inthe light of the wong and the purpose ofthat deo: twe mortars proche declaration ofulity of pubiclimted company on grcund ether than those at in Arita 11 ofthe cctv, 8. In order to reply to that question, should be observed that, a6 the Court pointed out in is Iudgment in Case 4/63 Vo Calon and Kemann v. Land Norhen-Westaan 1984) ECR 1891, ‘paragraph 26, the Mere Stes’ obfgstion arising froma directive to chiove the rasult envisaged by ‘the cretvn ad thal duty under Arla of tho Tanty to tak all apropriate mesures, whan gon- ‘a or particular, to ensure the fufiment of tat cpa, is bncng onal the authotss of Maber Sates inciting, for matters hin thor justin, tho cours folowes thet, in applying national, ‘whether the provers question wore adoated before or aftr the directv, the national cout called {pon to interpret ti ecued odo so, afar as possbl, othe ight ofthe wording andthe purpose ofthe deco inorder to achieve th result pursued by the ltr and thereby comply with the tid paragraph of Artie 169 of te Treaty. (ii) The Scope ofthe Interpretive Obligation ‘Ther are thee polnts torte sbout the scope ofthe otrpretve obligation, They are related bat distinc. icsttis ear fom Marlasingthat the obligation ofbarmoniousinterpetatonappleseven where the tional aw predates the directive and bas no specifi connection witht In Marleasng ere was zo domestic implementing leglslation which could be interpreted in the light ofthe Directive, bat ‘only domestic lw which predated the Dicetve and was nat atended to implement ‘Secon its clear from cases such a Pfeifer that the interpretive obligation applies not onl 19 rational aw that implemen the directive, bu othe national legal system asa whole?” > Seal CaseC-12708.Mon Car Sling Sn lqudtion v Dervis demi |2008}ECRI-645 6; CaseC-98D9 serge a ss ase C-20109 Sealand Veritas Gb Go Gv BY VG Boderberatung “ermaltangs Gn, 6 Dee 2180) (2004) €or 18335, “Taecate concerned theintrpetationet etves on heath and safety at workand working ime. The clsimants were workers ereployed by he dfendent, the Geman Red ross. Thy axguod that thy had bbs requiel to work n excess of48hours par week in vilaton ofthe Directv. Tho ECL etrated ‘at drecives cannot have horizontal crct effect, but held that the intorprative bgation from Von (Colson was applicable. THEEC 196. Although the principle tht exon! aw must be interpreted in cafermity with Community law concems chiefly domestic provsons enacted in order to implement the dvective in question, it ‘doesnot ental an interpretation mare of those provisions but requis the natlonal court to consider ‘tional law as a wal in order to asste5 0 what estntit maybe applied s0 88 nate produce@ osu Contrary to that sought the directive (ses, to that effec, Carbon paragrphs 49 and 5). ‘6. In that context ithe application of ntrpetaive methods recogised by national aw enables, Incersin cieunstanoos, a provision of domestic law tobe construedin suche way a ta avd contict with another rule of domesis iw or the scope of tet provision tobe restctod to that end by apoting tony in so far ast is compatible wih th rule conesrmed, the national court is bound o use those ‘methods inorder to achieve the rest sought by th directive 1. In this instance, ho principe of ntrpretatin in conformity wih Communit lew thus requres the refering court to do whatever es within its justin, heving regardo the whole body of rules of national lw, to ensure that Direcve 2/104 is fully effective, in order to provent the maximum ‘Weekly woking time lid down n Artie 62) of the rctv rom being exceeded (so, to tha ofoct, [Marleasing paragraphs? and 11. “Thirdly the interpretive obligation strong, but doesnot requlrean interpretation of national aw ‘that it cannot bea. Tere is continuicg debate as to bow strongly national courts are encouraged 10 Interpret otherwise clear provisions of national lw so as to comply with the directive ™ The Treaty obligation o national courts to take ll measures possible to comply with EU law clearly constrains the interpretive discretion national courts would otherwise have under national la, The EC] has moreover regularly emphasized the strength ofthe interpretive obligation Thus in Pfeifer the EC} ruled thatthe principle of interpretation in conformity with Community law thus requires the efer- ing cont to do whatever les within its jurisdiction, having regard tothe whole body of rules of ‘ational aw’ to ensure that a directveis effective’ “The EC} has not retreated from ts strong encouragement to interpret domestic law in conformity with diecives, but bas generally let to national courts to decide whether an interpretation in conformity with 2 directive was posible or whether it would result in contra lege reading. In Wagner-Mie, the Court accepted tat the Spanish legislation in question could not be interpreted % cases 2638 Barber v Guardian Royal Exchange 1990] ECR. 88,1957, Van Geren AG; Cases C~53-64/91 Jackson Chie uation Ofer 1991 ECR 473, [Van Gervea AG; Case C-27191 Marshal (No 2193) ECR 967 an Grven AG. cases 997-40) Pfr); Case C2586 impact (a 21 0): Cate C4608 Uniplex(UK) {ed NS Bases Services Author 28 ar200,( 45) 38sn Mores despite ddan ta ntonal courts ust ‘ead natal on in cone witha selva dr on} Ins fat aos the BC] Bald ha! he Sanh cot ws Pree roaring nonlin ay Which id ol campy with be ross ofthe Dit 204 | THE NATURE AND EFFECT OF EU LAW: DIRECT BPFECT AND BEYOND in such « way as to give effet tothe result sought by the applicants and the EC) has accepted in ‘other cats the lint of interpretation articulated by the national cout or apgarentin the terms ofthe legislation.” Howeves by way ofcntrat, on occaion, az in Pupino even theagh the EC] deferred to theultimate ssessmentof the national cour, the judgment expeesly suggested that an interpretation in conformity with the directive o framework decison seemed posible™* (iv) The Results of the Interpretive Obligation: Criminal Liability “The obligation of harmonious interpretation cannot sulin the imposition a aggravation of crimi- pal lability on an individual, bat it may revult in other advecse repercussions forthe individual. This floes fom the principle of non-retroactvity of penal ibility articulated by the ECT in Kolpinghuis Nijmegen.” Tn this case, the Dutch prosecution authorities sought to use the provisions ofan unim~ plemented directive gains the defendant. The EC}, after reiterating the principle of interpretation in paragraph 26 of VonColson,deciared that: [Tine obigaton on the national court 1D refer to the contont ot the eiracive when interpreting ‘tho rotvant rules of national ew is ited by the general principles of lw wich form pat of Commun aw era in prtular the principles of aga certainty nd non reroactivity...8 Grectve ‘cannot, of self and independant of alaw adopted forts implementation, have the elect of deter ‘mining er aggravating the laity in crinal law of parsons who actin conreveton ofthe provisions cf that deecve:™® () The Results of the Interpretive Obligation: Non-Criminal Liability “There has been more debate as tothe relationship between the duty of harmonious interpretation snd non-crimioal bility In paticalar the implications for individuals. Consider the ruling n the ‘Arcaro cae." The BC, having reiterated the obligation of harmoalovs interpretation, rule: ‘Hower, that ebigation ofthe nstionel court refer tothe content of he crectiva whon interpreting ‘the relevant rues ov naonl aw reches mit where such an interpretation leads othe impo ‘lon an an indo en obligation ed down by adreciva which has not been ansposed of, more ‘espacial, where thas the effect of determining or aggravating, onthe bass ofthe Dirctve and in ‘tha absanes of law nected fr its imolomentaton. the lab in criminal ew of persons who actin ‘contravention ofthat ectve's provisions (see Kopinghuls Nimegen cited above Cane c-30402 Wagar Mire nda de Gaara Salar 983) ECR-49, 122) Case )92 Do (2) Case C-1934 BI Cove nls v Cina Bus Reo 1986 ECR cee C=" Bvobus Ausra Niddterecicher Vrshrsogintsation 998) ICR (5 (1. C131087 Corbonrt Unter dg Stu Bolen 199} ECR 113, 8} (50; Cie C-8198 Alea Ausrle ‘Buneaminitru ir Wns und Vere 199] ECR. 7671, (9), Gate C-I0S03 Gmina! Praeedns against Marin Pupino [208] ECR S28, (7-8) Seal Cate C-15/97 cote» Granada Hosta! 958] ECR 5195 Care C1600 Laney TUT Dewtacland2002| SCR 1-263, Tian ‘AG; Case ©-00Carrantery Home Secretar 002) ECRI-627, Stell AG. "Care 68 (x8; Case C- O02 Criminal preceding eas [ANA ECRI-

    You might also like