direct/indirect effect & state liability

direct/indirect effect & state liability

1. Direct effect

   • enables individual to invoke EU directly in national courts- this ensures effective application of Union law.
   • Principle created in Van Gend - Q whether nationals can enforce a treaty art? Held: the treaty constituted a new legal order where M/S have limited their sovereignty- treaty art must be seen as conferring rights to individuals which the national courts must protect
     • Conditions: clear, unconditional (not positive), no further implementation needed.
       • Regulations- art 288 - binding in their entirety must satisfy conditions in Van Gend
       • Directives - Van Duyn - C wanted to rely on a directive that had not yet been implemented to her advantage, held: it was possible for directives to have direct effect.
         • Conditions - sufficiently clear, precise, unconditional. Ratti- implementation of the deadline must have passed. Dori- directives can only be invoked vertically against the state not individuals.
           • This was criticised because it meant that in employment cases those that worked for private companies cannot invoke rights under a directive. CJEU held that directives are addressed to m/s hence they should not escape their liability by blaming an individual. This was mitigated by introducing a wider interpretation of the state, indirect effect and state liability.
             • Emanation of State - Marshall v Southampton - person may rely on a directive against the state regardless of what capacity there are acting in.
               • Foster V British Gas - a public body is - a body responsible by the State, for providing a service under the control of a state & has special powers beyond those normally applicable between individuals.
     • Defranne V Sabena - private company infringed on D's rights to Art 157- held, horizontal direct effect was possible for treaty art & regulations.

2. Indirect effect -

   • Principle created in Von Colson - requires relevant national law to be interpreted in accordance with Union law
     • Marleasing - principle applies regardless of when the national law was enacted & national law must be interpreted as far as possible.
       • Arco - there is no duty for the national courts to adopt a contra legem interpretation which will amount to re-writing the law ( giving the law a different meaning which was not intended.
         • This is limited because a national provision has to be in place to interpret, but it can only be given an interpretation which is possible.

3. State liability

   • derives authority from Art 4
     • provides compensation to a claimant where they have suffered loss due to a m/s having breached a provision of Union law
       • Developed in Francovich- M/s should take appropriate measures to ensure the fulfilment of obligations arising out of a treaty consequently they should make good any loss/damage caused to individuals as a result of a breach to community law.
         • Conditions- result prescribed by the directive must grant rights to individuals, rights must be identifiable, causal link between m/s failure and loss suffered. Applies regardless of which body of state was responsible for the breach.
           • Braisserie du Pecher - where the m/s enjoy a wide discretion 3 conditions must be satisfied, rule of law must confer rights to individuals, breach must be sufficiently serious & a dire casual link
             • Factors taken into account - has the m/s manifestly + gravely disregarded the limits of discretion, clarity + precision of rule breached, discretion left by the community authorities, whether infringement was intentional/ involuntary, error of law is it excusable/inexcusable, whether the position taken by the community institution contributed.
               • e.g. - r v HM treasuryex parte BT - incorrect implementation = defence because of good faith.
                 • Non transportation in time = automatically sufficient serious breach. Kobler - state liability to a decision of a court of last instance must be an erroneous interpretation of community law by a court of last instance.