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2010-05-13 01:47:16

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  1. Van Gend en Loos (1963)
    direct effect orgin-dual vigilance, standstill provision main question was the question of the direct effects of Article 12, which dealt with customs duty. If the Article was found to be directly effective it would conflict with an earlier Dutch law. Under Dutch law, if Article 12 was found to be directly effective it would, under the Dutch constitution, take precedence over domestic law. The reference to the ECJ did not raise the issue of sovereignty directly. Nevertheless, in addition to declaring that Article 12 was directly effective, the ECJ went on to say that "� the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields." If 3 conditions were fulfilled, individuals could enforce the Article directly in their national court. This was a right conferred on individuals �in addition to the supervision entrusted by Articles 169 and 170 [now Articles 226 and 227 EC] to the diligence of the Commission and of the Member States�. It should be noted that until the Maastricht Treaty in 1993 there was no sanction against a MS which failed to remedy the breach after the ECJ had declared it to be in breach under Article 226.
  2. Werner Mangold v Rudiger Helm,[2005]
    age discrimination/purely horizontal case-the Court did not mention the question in a judgment in a case between two individuals and confined itself to dealing with the incompatibility of the national legislation with Community law where a general principle of Community law (non-discrimination) was concerned. It asserted that it was the responsibility of the national court to guarantee the full effectiveness of the general principle by setting aside the national legislation, even before the date of expiry of the implementation period
  3. Andrea Francovich, Danila Bonifaci and Others v Italian Republic
    state liabilityThe case concerned the total failure of the Italian authorities to transpose a Directive into Italian law. The ECJ declared that the principle of state liability was �inherent in the scheme of the Treaty�, basing these observations on Article 10 EC (formerly Article 5) and the principle of effet utile (effectiveness of Community law).
  4. Internationale Handelsgesellschaft (1970)
    -challenge to the supremacy of Community law-Provisions of EC law that are directly effective prevail over inconsistent rules of national law even constitutions or any Bill of Rights of MSs -involved a possible conflict between EC secondary regulations and the fundamental human rights protected by the German Constitution. Internationale Handelsgesellschaft had been granted a licence to export a certain quantity of maize within a limited period of time. It was required to pay a deposit which would be forfeit if it failed to export in the allotted time. When the company failed to export within the allocated period, the deposit was forfeited and the applicant then requested the annulment of the Community Regulation on the grounds that it was in conflict with provisions in the German constitution. The German national ct held that the deposit system was contrary to principles of national constitutional law, including the principles of freedom of action and of disposition, of economic liberty and proportionality and made a reference to the ECJ. The applicant argued that the EC regulation should be invalidated due to its conflict with the Constitution. The ECJ rejected any possibility of EC law being judged against national laws, even constitutions. It stated: "� the validity of a Community instrument or its effect within a member State cannot be affected by allegations that it strikes at either the fundamental rights as formulated in that States' constitution or the principles of a national constitutional structure." the validity of Community law could only be judged in the light of Community law. However, the Court went on to consider whether �any analogous guarantee inherent in Community law� had been �disregarded� and repeated that �respect for fundamental rights forms an integral part of the general principles of Community law protected by the ECJ�. So it reaffirmed the existence of fundamental rights as part of the Community legal order and looked to see if the rights claimed were protected by European Community law. The Court concluded that in this case there was no infringement of the fundamental rights protected by European Community law: the requirement for forfeiture was not disproportionate to the general interest that the deposit system served. However, the German Administrative Ct did not agree & referred the matter to the German Federal Const Court. In its judgment the Constitutional Court held that �that part of the Constitution dealing with fundamental rights is an inalienable essential feature of the valid Constitution of�Germany� and that where there was conflict between Community law and such rights �the guarantee of fundamental rights in the Constitution prevails�� The German Federal Const Court would therefore not accept the supremacy of Community law where there was a conflict between a fundamental right protected by the German constitution and EC law. This was, then, a serious challenge to the authority of the ECJ and to the Community legal order. The German Court in its judgment referred to the fact that the EC lacked �a codified catalogue of fundamental rights�.
  5. Re Wunsche Handelsgesellschaft [1984]
    ECR 1995 (Solange II). Previous situation resolved-In this case, the German Federal Constitutional Court accepted the supremacy of EU law because, by this date, the ECJ had incorporated adequate fundamental rights protection into the Community legal order. The German Court said it would accept the supremacy of EU law �as long as� (�solange�) rights were adequately protected by the Community legal order.
  6. Simmenthal (1978)
    • Supremacy-emphasizes the inapplicability of conflicting national legislation/Implement transposition into national law correctly?- i.e. Repeal/amend conflicting law, (even in the case of Regulations when it will be overridden anyway, if it is necessary to preserve certainty - Rule of Law) directly effective provisions of EC law have a blocking effect on subsequent national provisions-Italian judge was faced with a conflict between an EC regulation and Italian laws, some of which were enacted after the regulation. Under Italian law, domestic legislation contrary to EC law was unconstitutional. However, only the Constitutional Court had jurisdiction to make such a ruling; the ordinary courts could not. The judge referred this issue to the ECJ, which held:
    • "every national court must in a case within its jurisdiction apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule � it is not necessary for the court to request for or await the prior setting aside of such provisions by legislative or other constitutional means."
  7. Marshall v Southampton & Southwest Hampshire Area Health Authority (Teaching) [1986]
    NO horizontal direct effect-because individuals are not to blame for the non-implementation of the Directive.Early retirement had been held to be unfair dismissal. Compensation was subject to an upper limit which prevented her from receiving full compensation as the amount did not include the interest on the award between the date of the breach and the judgment. The Court said the application of the upper limit would therefore not provide for an adequate remedy. The Directive required that the remedy chosen by the state must be adequate and effective (Article 6) and since the remedy chosen here was compensation it must have no ceiling and include interest. Directive can only be invoked vertically, by an individual against the state, and not horizontally, by one individual against another, because individuals are not to blame for the non-implementation of the Directive. This rule has been criticised because it can lead to inequality: an individual's ability to bring an action based on a Directive will depend on whether they are suing the state or a private person or company.
  8. Pubblico Ministero v Ratti[1979]
    -only takes effect from the date when it should have been implemented/shield, (prosecuted by state) of direct effect is based on the Member State�s fault, that a Directive can only be directly effective after the expiry of the time limit given for its implementation since, until that time, the Member State is not in breach of any obligation.. Where the Member State is at fault (either because it has not transposed the Directive into national law at all, or because it has done so inaccurately) an individual can claim against that state the rights he or she should have had if the Directive had been correctly implemented. state cannot rely on its own wrongdoing to frustrate the rights of individuals under Directives. Becker-DE,(income tax) was a sword.
  9. Defrenne v Sabeena [1976]
    vertical/horizontal direct effect-ECJ held that Treaty provisions are capable of creating direct effects both vertically between and individual and the State, and also horizontally between individuals. Here Ms Defrenne, an airline stewardess employed by the Belgian airline Sabeena, was paid less and had to retire earlier than male stewards. She claimed that this was in breach of Treaty Article 141. It was held by the ECJ, via an Article 234 reference, that Treaty provisions created direct effects both vertically and horizontally. Again it had to be clear, unconditional and not requiring further action by the Member State.
  10. Van Duyn v Home Office 1974]
    direct effect applies to directives/free movement of workers w/in Community-Dutch Woman coming to the UK to work for the church of scientology was denied entry. Article 39 guarantees free movement but subject to restrictions under policy and public health. Directive 64/221 held that exceptions to Article 39 must be based exclusively on conduct. The ECJ held that Article 39 was not directly effective as it relied on further legislation by the Member States, but the directive imposed a clear obligation that exceptions could be based solely on conduct, and this was directly effective as long as three conditions were filled: the directive must be (i) clear, precise and unconditional, (ii) not dependent on further legislation/action by the Member State or the Community, and (iii) the date of implementation must have passed. the Ct held that Ms van Duyn could rely on a clause in a Directive which the UK had not introduced into national law.
  11. Factortame (1990)
    • -A group of Spanish fishermen brought a claim before the English courts for an interim injunction to prevent the application of certain sections of the Merchant Shipping Act 1988, which denied them the right to register their boats in the UK, and which the plaintiffs alleged were in breach of EC law. The legality of the MSA 1988 under EC law had yet to be decided under a separate reference to the ECJ. The British courts were being asked to grant an interim injunction against the Crown, pending resolution of the substantive issues, something they were not permitted to do under national law.
    • Following a reference by the House of Lords asking whether they were obliged to grant interim relief as a matter of EC law, the ECJ pointed out that national courts were obliged, by Article 5, to ensure the legal protection which persons derive from the direct effect of EC law. Moreover: "It must be added that the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule."
  12. Factortame (No. 2) (1991)
    -The House of Lords granted interlocutory orders against the Crown disapplying Part II of the Merchant Shipping Act 1988 and restraining the Secretary of State from enforcing it and related regulations against the Spanish fishermen, pending the final determination by the ECJ of the compatability of these provisions with EC law. This was even though, as a matter of UK law, interlocutory injunctions could not be granted against the Crown. The ECJ later ruled that the conditions imposed by the Merchant Shipping Act 1988 were indeed contrary to EC law. Part II of the Act was amended by delegated legislation in 1989 and then replaced by the Merchant Shipping (Registration, etc) Act 1993.
  13. Brasserie du Pecheur - C-46/93 - and Factortame - C/48/93)
    • where the court ruled that the State is liable to make good the loss and damage caused to individuals if three conditions are met:
    • 1) the rule of Community law which has been infringed shall entail the granting of rights to individuals
    • 2) the infringement is sufficiently serious
    • 3) there is a direct causal link between the breach of the State's obligation under Community law and the loss and damage suffered by the injured parties.
    • 56. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.
  14. Garland v BR Engineering (1983)HL
    - children of male employees-House of Lords referred the matter to ECJ as to whether the fact that British Rail made concessionary travel facilities available to the children of male employees reaching retirement, but not to the children of women reaching retirement amounted to discrimination contrary to Article 141(119, then). The ECJ ruled that the policy amounted to discrimination contrary to Article 141 (119, then) and that Article 141 must prevail. This case involved a conflict between s6(4) of the Equal Pay Act 1970 and Article 119. Section 6(4) (which exempts from the equal pay principle provisions relating to death and retirement) had been broadly construed by the Court of Appeal to the detriment of the plaintiff. He therefore sought to rely directly on Article 119. The House of Lords held that s6(4) must be construed to conform with Article 119. Lord Diplock said that it is now a principle of construction of UK statutes, that the words of a statute passed after the EC Treaty has been signed and dealing with the international obligation of the UK, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.
  15. Frontini v Ministero dell Finanze [1974]
    the Italian Constitutional Court accepted the supremacy of Community law only conditionally, stating that it reserved the right to hold fundamental rights protected by the Italian constitution to be supreme over Community law
  16. Andrea Francovich, Danila Bonifaci and Others v Italian Republic [1991]
    state liabilityThe case concerned the total failure of the Italian authorities to transpose a Directive into Italian law. The ECJ declared that the principle of state liability was �inherent in the scheme of the Treaty�, basing these observations on Article 10 EC (formerly Article 5) and the principle of effet utile (effectiveness of Community law).
  17. von Colson v Land Nordrhein-Westfalen [1984]
    indirect effect/Compensation must be adequate- directive which had been in adequately implemented.Vertical claim against the German prison service, the ECJ held that the natl court is under a duty to interpret existing national law, so far as possible, to achieve the result laid down by the EC Directive. The doctrine is based on the idea that natl courts are part of the state and, consequently, are bound by Article 10 EC (formerly Art 5). That Art requires M. States to �take all appropriate ensure the fulfilment of their obligations� under the EC Treaty. The effect of the ruling is to shift the responsibility for giving effect to Directives on to national courts in situations where their governments have failed to introduce adequate natl implementing measures. von Colson principle means that national cts are under a duty to interpret natl legislation �in the light of the wording and purpose� of Comm law.
  18. Schmidberger v Austria [2003]
    state liability against the Austria, S, an international transport company, to recover losses incurred when five lorries of the company were prevented from transporting goods from Germany to Italy because of a demonstration that lasted almost 30 hours.Austrian authorities had permitted the demonstration, which was lawful under national law and which sought to highlight threats to the environment and public health caused by increased traffic; they had taken measures to minimise disruption to traffic. The company sought damages on the grounds that, by not banning the demonstration, the Austrian government had breached EU law. The ECJ held that the Austrian authorities were motivated by a desire to protect freedom of expression and freedom of assembly which are fundamental human rights guaranteed by the ECHR which are to be protected by the EU according to the TEU. The protection of these rights is a legitimate interest which, in principle can justify restrictions of the obligations imposed by EU law, even a fundamental freedom, such as the free movement of goods. Because these rights are not, however, absolute but subject to limitation in the public interest, a proportionality test needed to be applied. The Court concluded that the �legitimate aim of that demonstration could not be achieved in the present case by measures less restrictive of intra-community trade� and therefore the decision not to ban the demonstration was justified and proportionate and did not breach Article 28 EC. It was therefore unnecessary to consider the question of state liability as there was no breach of Community law. A number of commentators have opined that this could have been justified on the grounds of public policy rather than creating a new mandatory requirement.
  19. Brunner v The European Union Treaty [1994]
    when considering whether the Maastricht Treaty on EU unduly extended the competences of the EC and made too many inroads on German sovereignty, the Federal Constitutional Court again re-affirmed German constitutional sovereignty & its right to review the scope of Community competence.
  20. Nold [1974] ECR 491
    existence of fundamental rights and general principles A Decision of the Commission authorised the Ruhr coal-selling agency to adopt certain restrictive criteria for its supply of coal. This meant that Nold would no longer be classified as a direct coal wholesaler. The consequence of this was effectively to deprive him of his livelihood. He claimed that the decision discriminated against him and affected his fundamental rights. Whilst confirming that fundamental rights were part of the Community legal order (see above) the ECJ decided the case against him. The ECJ will often recognise the existence of a right but then balance it against the Community interest. A case which illustrates this is: The Court stated that fundamental rights were �subject to certain limits justified by the overall objectives pursued by the Community�. This is an important element of the Court�s case law in regard to rights. Whilst recognising fundamental rights, the Court balances them against the Community interest and will therefore often find against the applicant. In this case, it held that such rights �can in no respect be extended to protect mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity. The disadvantages claimed by the applicant are in fact the result of economic change and not of the contested decision.� Those rights derived from the ECHR are recognised by the ECJ as being part of the fundamental rights protected by EC law by virtue of the fact that the Member States are signatories to the Convention and that these are therefore rights which all the Member States have approved. Note that the Convention is not a direct source of law. The Convention rights are relied on because they are incorporated into the EU legal order and become EU fundamental rights. Firstly the Court again stated that �fundamental rights form an integral part of the general principles of law, the observance of which [the ECJ] ensures� It then made clear that there are 2sources from which it would derive these rights. The Ct would draw inspiration from �constitutional traditions common to the Member States� and also from �international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories�.
  21. Hauer v Land Rheinland-Pfalz [1979]
    -fundamental right balancing-Ms H lived in Germany. She challenged a refusal by the national authorities to grant permission to grow vines on her land. This refusal was based on an EU Regulation which prohibited growing new vines in the region in which she lived. She appealed to the German court which made a referral to the ECJ. Ms Hauer argued that the refusal of permission to grow vines on her own land infringed her rights to trade and to property. The ECJ acknowledged that these rights were part of Community law. It grounded its recognition of the right to property in the first protocol of the ECHR stating that international treaties �can supply guidelines which should be followed within the framework of Community law�. However the Court of Justice then denied that the right to property had been impermissibly infringed in this case. It pointed out that although rights to property were recognised in the constitutions of several Member States, such rights were not absolute but could be restricted in the national interest. The Court looked to see if the planting restrictions were disproportionate. It considered the purpose of the scheme under which the Regulation had been legislated. This was to produce a balanced wine market with fair prices for consumers, a fair return for production and an eradication of surpluses of the rather inferior type of wine which was produced in this area of Germany. The Court decided that the challenged Regulation prohibited new plantings as part of this overall plan and that this was justified and proportionate in the light of the legitimate aims of Community policy. This is a good example of the ECJ using the ECHR as a source for a fundamental right, yet in the same case, balancing the right against the Community interest and denying that the right had been unlawfully infringed in the particular case. The European Union is not a signatory to the ECHR, and the ECJ uses this Treaty only as evidence of principles to which all the Member States have subscribed. The ECJ decided that the EC did not have competence to accede to the ECHR. See: Opinion 2/94, Accession to the European Convention of Human Rights [1996] ECR I-1759, [1996] 2 CMLR 265
  22. ERT v Dimotiki Etaira Pliroforissis [1991]
    ECR I-2925 ERT was a broadcasting company to which the Greek government had granted an exclusive right to transmit television and radio programmes. It took action against two respondents who had set up a tv station in competition with them. The respondents claimed that the grant of an exclusive right to broadcast infringed Article 10 of the ECHR, freedom of expression, as well as the free movement of services and competition rules. ERT relied on derogations from free movement under Articles 46 and 55 EC (then Articles 56 and 66). The ECJ ruled that although it had no jurisdiction to examine the compatibility of national rules with the ECHR, where national rules fall within the scope of Community law they may be reviewed by the ECJ to ensure their compatibility with the fundamental rights protected by Community law. Here, ERT was relying on derogations granted by the Treaty and therefore the matter was within the scope of Community law. The ECJ held that �the national rules in question can fall under the exceptions provided for by the combined provisions of Articles 46 and 55 EC (then Articles 56 and 66) only if they are compatible with the fundamental rights, the observance of which is ensured by the Court�. This is an important principle, making it clear that the actions of the Member States when giving effect to, or derogating from Community law, will also be subject to scrutiny for compliance with EC fundamental rights and general principles.
  23. 4-part test for natl cts to use to decide whether a body was an emanation of the state'
    • -Pursuant to a measure adopted by the state?
    • -Under the control of the state?
    • -Does it have special powers going beyond those of normal commercial undertakings?
    • The four conditions must all be fulfilled (they are cumulative, not alternative).Foster v British Gas [1990] "emanation of the State" (60/65 retirement) which interpreted widely, e.g.
  24. Unilever Italia v Central Food SpA [2000]
    -"INCIDENTAL" HORIZONTAL EFFECTS of Directives -The use of unimplemented directives in certain cases between private parties? This only applies in a very few situations, and these seem mostly to be a 1off�, where private parties were concerned on both sides, but where no particular obligation was put on the defendant.
  25. Marleasing [1990]
    -apply EC law in its entirety, give effect to the doctrine of DE of EC law of directives-Ct confirmed that natl courts are under a duty to interpret national law which has been enacted prior to the Directive and/or has not been enacted specifically to give effect to the Directive in light of the provisions of that Community Directive. This clarification by the Ct has led to a more constructive approach being adopted by the UK courts towards its interpretative obligation the practical outcome of the ruling is to allow individuals to rely on directives in actions against other individuals, which is contrary to the Court's interpretation of Art.249 (3) EC as laid down in Marshall (No.1). However, formally, the D was deriving protection from the Directive indirectly via natl law and not directly from Comm law as would be the case with horizontal direct effect. It has been argued that the situation which emerged in Marleasing could be classified as passive horizontal direct effect of Directives. In other words, an individual is able to rely on a Directive to protect his Community rights, but without imposing any corresponding obligations upon the other party. In Marleasing, by invoking the Directive in its defence (i.e. as a shield), the defendant company did not impose an obligation on the other party in the sense previously referred to by the Court in Marshall (No.1). The only obligation to be imposed on the claimant would be its duty, as a third party, to respect such Community rights. national court must utilise this canon of interpretation � as far as possible, in the light of the wording and purpose of the Directive� .In this case, it went on to prescribe the interpretative result to which the national court was to give effect. However, it is submitted, as Craig & de Burca suggest, that in many post-Marleasing cases, the Court's approach tends to be less prescriptive
  26. Evans
    • -action for damages under the principle of State liability, it was hoped that the Court would seize the opportunity to address the approach of the UK courts towards indirect effect. Having failed to assert his alleged Community right by virtue of the principles of direct and indirect effect before the CA & having been refused leave to appeal to the HL, Mr Evans subsequently brought an action for damages against the UK for failing to implement the Directive correctly. The High Court stayed proceedings and referred several questions to the Court of Justice for a preliminary ruling under Art 234 EC. Although the referral in Evans concerned the C�s action for damages under the principle of State liability, it was hoped that the Ct would seize the opportunity to address the approach of the UK cts towards indirect effect.
    • White-indirect effect, centred on the correct interpretation of the Second Motor Insurance Directive which required MS to set up a compensation fund for victims of uninsured and untraced drivers by the end of 1988. In the UK, this was done by amending a series of agreements which had been concluded between the Motor Insurers' Bureau and the Department of Transport since 1946. What is most startling about the decisions of the CA and the HL is their limitation of the scope of the Marleasing principle. Both courts refused to interpret the agreements in question to comply with the Directive. The national court justified this restriction by stating that since the UK had implemented the Directive by way of a private law contract with the Motor Insurers' Bureau, the Marl principle did not apply. Lord Nicholls held that the principle of indirect effect � � cannot be stretched to the length of requiring contracts to be interpreted in a manner that would impose on one or other of the parties obligations which, the Marl case apart, the contract did not impose� . Fortunately for the claimant, Lord Nicholls resolved the dispute by drawing on and applying national law. He held that even though the Marl principle could not apply in this context, � � I consider that the application of the conventional principles of interpretation of documents arrives at the same result�
  27. Paola Faccini Dori v Recreb [1994]
    THE 'INCIDENTAL' HORIZONTAL DIRECT EFFECT OF DIRECTIVES: A natural development of indirect effect? Resisted recognising the horizontal effect of directives as this - "would be to recognise a power in the Community to enact obligations for individuals with immediate effect, whereas it had competence to do so only where it is empowered to adopt regulations". Note: AG Lenz argued in favour of introducing horizontal direct effect claiming that EU citizenship "raises the expectation that citizens of the Union will enjoy equality, at least before EC law" The interpretative obligation re indirect effect will not compensate for this absence of horizontal direct effect if there is no national law to interpret or give effect to. A solution suggested by Stuyck and Wytinck is "passive horizontal direct effect". i.e. That a directive may be invoked against by one individual against another, when the former, though invoking the directive to safeguard rights conferred on him/her, does not actually impose an obligation on the latter.
  28. R v Arcaro: [1996]
    • the incidental horizontal direct effect of directives: A natural development of indirect effect?concerned criminal proceedings brought against Luciano Arcaro for industrial discharge of dangerous substances into the aquatic environment.
    • HELD: The interpretative obligation reached a limit when such interpretation would mean the imposition of an oblig on an indiv, which would determine or aggravate the individual's criminal liability as a result. A directive may not by itself create obligations for an individual and that a provision of a directive may not therefore be relied upon as such against such an individual-152/84 Marshall; 80/86 Kolpinghuis Nijmegen. This case law seeks to prevent a MS from taking advantage of its own failure to comply with EC law C-91/92-Faccini Dori.
  29. Oceano v Rocio Murciano Quintero [2000]
    • THE INCIDENTAL HORIZONTAL DIRECT EFFECT OF DIRECTIVES: A natural development of indirect effect?Oceano sued for payment under a contract for sale of encyclopaedias to Murciano Quintero. The question for the national court was whether a clause of the contract giving the Barcelona courts jurisdiction, and which had on several occasions been deemed unfair by the courts, was binding. Spanish law was amended to incorporate a list of unfair terms in accordance with the EC Unfair Terms Directive, including a jurisdiction term, but only after the events which were the subject of this litigation had taken place. The question referred to the ECJ was whether the national court ought to raise the issue of the unfairness of the term in a dispute between two private parties based on events which had taken place before the directive had been implemented.AG Saggio refers to the "exclusionary effect" of unimplemented directives based on the supremacy of EC law. He referred to the duty of national courts both to invoke unimplemented directives and their duty to disapply conflicting national law without necessarily substituting provisions of EC law but stopped short of declaring full horizontal direct effect.
    • ECJ - The term was unfair and the directive would entail a national court being able to raise and determine that of its own motion. A national court is obliged when applying provisions of national law, predating or post-dating the Community legislation, to interpret those provisions, as far as possible in light of the wording and purpose of EC law. If a rule of national law prevents the application of EC law then this must be set aside.
    • Note: This ruling does not declare that the Spanish court must decline jurisdiction by reading national law in the light of the directive's requirement, but it does encourage the national court to do this. This effectively amounts to a directive repealing national law predating a directive if the case before the court is heard after the date for implementation of the directive has passed. Perhaps this can be justified on the basis that the subsequent national law giving effect to the directive has reinforced that position.
  30. Lemmens [1998]
    • "INCIDENTAL" HORIZONTAL EFFECTS-The use of unimplemented directives in certain cases between private parties?L was charged under Dutch criminal law with driving a vehicle while under the influence of alcohol. The breath-test device used to measure the amount of alcohol in his body complied with certain Dutch technical regulations which had not been notified to the Commission by the Dutch authorities, such notification being required by Council Directive 83/189/EEC. L asked the national court whether there were any implications for his case. The court applied for a preliminary ruling under A234.
    • HELD: Whilst the directive could be relied upon by individuals before a national court of a Member State, the ECJ held that the purpose of the directive was to protect the free movement of goods and therefore it did not have the effect of making evidence, such as the breath-test results in Mr Lemmen�s case, inadmissible.
  31. CIA Security International SA v Signalson SA and Securitel SPRL [1996]
    • THE "INCIDENTAL" HORIZONTAL DIRECT EFFECT OF DIRECTIVES: A natural development of indirect effect. plaintiff�s competitors claimed that an alarm system marketed by the plaintiff did not satisfy Belgian technical regulations. In libel proceedings brought by CIA before the national court, CIA argued that the Belgian regulations were in breach of A28 EEC & had not been notified to the Commission as required by Council Directive 83/189/EEC. The ECJ has been willing to give �incidental� horizontal direct effect of Directives in triangular situations:
    • HELD: The national regulations should have been notified under the directive. On the question whether a breach of the obligation to notify, constituting a procedural defect in the adoption of the national law concerned, renders it inapplicable, so that it may not be enforced against individuals, the ECJ went on to rule that part of the directive was to protect the free movement of goods by preventative control. It would enhance the effectiveness of that control to provide that a breach of the obligation to notify would render the unnoticed domestic law inapplicable to individuals. (State would effectively be penalised for its own breach). The Directive could be relied upon by an individual before a national court, which must decline to apply any technical regulation which had not been notified, even though this could adversely affect a third party involved in litigation.
    • Note: If this had been a case whereby CIA was defending itself against proceedings brought by the State for breach of the national law which conflicted with the directive, it would have been similar to the approach taken in Kolpinghuis re an unimplemented directive, and probably less controversial.
    • Although it did not impose a legal obligation on the defendants, it removed from them the protection of the national technical regulation and exposed them to potential liability under national law.
    • The outcome of this case relying on the directive v two private parties could mean that the defendants may be found liable for defamation and/or unfair trading. (unlikely that a case re the latter would be brought on the facts).
  32. van Gend-Treaty could have direct effect if it was:
    • -clear and precise
    • -unconditional
    • -its operation did not require a legislative implementing measure on the part of the State.
  33. Marleasing Principle
    -neg obligation ie ~ct not re-writing contract/Art 10
  34. Marshall #2 1993
    • remedy must be effective, application of the requirement for adequate and effective remedies-M rtns for $ Her compensation was subject to an upper limit which prevented her from receiving full compensation as the amount did not include the interest on the award between the date of the breach and the judgment. The Court said the application of the upper limit would therefore not provide for an adequate remedy. The Directive
    • required that the remedy chosen by the state must be adequate and effective (Article 6) and since the remedy chosen here was compensation it must have no ceiling and include interest.