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Opinion of Advocate General of CJEU: Farrell v Whitty and Ors, Case C-

413/15
Bloomsbury Professional

September 7, 2017

Opinion of Advocate General of CJEU: Farrell v Whitty, Minister for the Environment, the Attorney General, Motor Insurers Bureau of Ireland, Case C- 413/15, Delivered on
22 June 2017 Definition of emanation of the state Directive not transposed into national law direct effect vertical disputes Foster test factors non-exhaustive
boundaries of the state state funding day-to-day control additional powers.

The applicant was injured in a road traffic accident in 1996. At the time she was travelling in a van belonging to and driven by Mr Whitty and was seated at the rear of the van that
had not been designed for passengers. Mr Whitty was uninsured and under Irish law at the time was not required to take out insurance to protect against negligent injury to such
passengers. As a result the Motor Insurers Bureau of Ireland (MIBI) refused the applicants request for compensation because it was not a liability requiring insurance under
Irish law. The High Court of Ireland made a preliminary reference to the CJEU seeking clarification on the Third Motor Insurance Directive.

The European court must decide whether based on the directly effective nature of the directive it could be exercised against a body such as the MIBI. The question referred to the
European court was whether the MIBI is an emanation of the state.

The Advocate General reviewed the factors set out in the Foster decision (C-188/89) to decide whether a body is an emanation of the state and found that the Foster criteria were
not intended to be exhaustive. Drawing on post-Foster case law and reviewing the approaches in other areas of EU law, eg state aid, public procurement and provision of
services to distinguish between state emanations and private individuals, the Advocate General said that the following matters are to be taken into account:

the legal form of the body is irrelevant but a natural person cannot be an emanation of the state;
the state is not required to be in day-to-day control or direction of the operations;
if the state owns or controls the body, then it is deemed an emanation of the state without having to apply other criteria;
a municipal, regional or local authority or equivalent is automatically deemed to be an emanation of the state;
there is no requirement for the body to receive state funding;
if the body has the task of performing a public service which would otherwise be carried out by the state and the body is equipped with additional powers to perform its
objectives, it is deemed to be an emanation of the state.

The Advocate General recommended that the national court takes account of the fundamental principle that an individual can rely on precise and unconditional provisions of a
directive against the State, irrespective of the capacity in which it is acting, in order to prevent the state relying on its own failure to properly transpose EU law.

Further, the Advocate General found that where a Member State transferred broad responsibility to a body to meet EU law obligations, the body is not required to have special
powers beyond those resulting from the normal rules governing relations between individuals in order to be an emanation of the State.

The Advocate Generals Opinion is a non-binding recommendation submitted to the Court of Justice, which will deliver judgment at a later date.

Full decision

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