Using EU Law before National Courts

Direct Effect
1. Established in Van Gend en Loos (1963)
  1. TEST
    1. Sufficiently clear and precise
      1. Objective - To a reasonable judge?
      2. As long as general principle and substance clear
        Some scope for interpretation
        DEFRENNE V SABENA
    2. Unconditional Obligation
      1. Von Colson (1984)
    3. No further act of implementation required
2. TWO TYPES
  1. Vertical
    1. Individual - v - MS
  2. Horizontal
    1. Individual v Individual
3. Direct Effect & Directives
  1. As further steps are required by MS to implement - assumption was not DE
    1. HOWEVER
      1. Grad v Fitnanzamt (1970)
        Directives capable of DE where deadline for implementation passed.
        VAN DUYN (1974)
        VDE ONLY - Must be against state
        STATE
        Marshall V SW Health Authority - VDE -DE create to prevent MS benefiting from breach
        Foster v British Gas - Guidelines
4. Direct Effect & Treaties
  1. Both VDE & HDE
    1. HDE - Defrenne v Sabena
    2. VDE - Van Gend en Loos
5. Where direct effect does not apply : INDIRECT EFFECT
  1. Interpretation Principle
    1. MS courts are under an obligation to interpret EU law to ensure consistent application
      1. Interpret as per the intention
  2. VON COLSON (1984)
  3. HARZ (1984)
  4. Extended - Marleasing (1990)
    1. Regardless of when the national law was enacted - must be interpreted AS FAR AS POSSIBLE in line with EU law
State Liability
1. Developed to deal with limitations of direct and indirect effect
  1. Francovich & Boniface v Italy (1991)
    1. 3 conditions
      1. Rights given to individuals
      2. Rights are identifiable within the wording
      3. Causal link - breach & loss
2. State may be liable for loss caused by States failure to implement legislation
  1. Now also applies to all Community Law
    1. Also added breach must be sufficiently serious
      1. Manifestly and gravely disregarded the limits of its discretion
        Further considerations
        Whether infringement or damage was intentional or involuntrary
        Error of law was excusable or inexcusable
        Position take by a Community Inst. may have contributed
      2. British Telecoms (1996)
        Inadequate implementation
        Circumstances will need to be considered
        May be excusable where attempt has been made to implement and where MS thought they had done so correctly.
    2. Brasserie & Factortame (1996)
3. Suing state as entity
4. State may also be liable for actions of the judiciary
  1. Controversial as the State do not have control or influence over the judiciary
  2. Kobler (2003)
    1. Court has failed to apply relevant EU Law
      1. ECJ confirmed SL would apply but only in exceptional cases where the court has manifestly infringed the applicable law
        i.e refusal to follow EU law
        Manifest breach - strict approach
  3. Traghetti (2006)
    1. Cannot limit the scope of SL with national law
    2. Conditions
      1. Degree and clarity of rule
      2. Infringement was intentional
      3. Error - excusable or inexcusable
      4. Position taken by community instr
      5. Enter text here
5. Reasoning - Allows individuals who suffer loss to be able to recover loss

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Using EU Law before National Courts

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	Created by axw about 11 years ago