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Cases for EU exam - indirect effect
Cases for EU exam - Indirect effect
21
Law
02/08/2012

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Term
Indirect effect
Definition
the provisions of EU legislation can be used by national courts in interpreting the meaning and scope of national legislation
Term
VON COLSON & KAMANN V LAND NORDHEIN-WESTFALEN
Definition
(Vertical)
ESTABLISHED THE PRINCIPLE OF
INDIRECT EFFECT
CJ RULED ON THE BASIS OF ART 10 EC, THAT NATIONAL COURTS AS A PART OF THE STATE ARE REQUIRED TO INTERPRET DOMESTIC IMPLEMENTING LAWS IN ACCORDANCE WITH THE WORDING&PURPOSE OF THE DIRECTIVE THEY WERE MADE TO IMPLEMENTS IN SO FAR AS IT IS GIVEN DISCRETION TO DO SO UNDER NATIONAL LAW
THE CASE CONCERNED 'IMPLEMENTING' LEGISLATION, HOWEVER... CJ SUGGESTED THAT THE INDIRECT EFFECT PRINCIPLE COULD ALSO BE USED FOR NON-IMPLEMENTING LEGISLATION (TBC)
VERTICAL CLAIM
Case concerned an incorrectly implemented directive
Term
VON COLSON
Definition
INTRODUCED INDIRECT EFFECT - VERTICAL CLAIM - IMPLEMENTING LEGISLATION
Term
Harz v Deutsche Tradax
Definition
Confirmed that directives could have indirect effect in horizontal actions
Term
Litster v Forth Dry Dock and Engineering Co Ltd [1990]
Definition
(Horizontal) (insufficient implementing legislation) UK courts = cautious in their application of Von Colson principle
UK court made clear in this case that they would only depart from the literal meaning of legislation if the legislation had been created to implement the directive, and was clearly not designed to limit the directive's operation
THEREFORE, UK AT THIS POINT = ONLY FOR IMPLEMENTING LEGISLATION
Term
Pickstone v Freemans plc [1989]
Definition
(UK)(Horizontal)(INSUFFICIENT IMPLEMENTING LEGISLATION) HOL made it clear that it will only depart from an unambiguous meaning of a statute, if the statute was designed to implement a directive.
Term
Marleasing SA v La Commercial International
Definition
(Horizontal) (Spain) (TOTAL NON-IMPLEMENTED DIRECTIVE)
Non-implementing legislation has to be given indirect effect
CJ removed the discretion w.r.t how far is 'as far as possible', and forced total conformity (CJ has since back-tracked from this forcefulness)
CJ ruled that spanish court had to interpret NON-implementing legislation 'as far as possible' in accordance with an un-implemented directive
CJ also required that the Spanish law was interpreted in accordance with the directive - therefore, 'as far as possible' = in accordance (no discretion)
Term
MARLEASING
Definition
Confirmed that even in the case of total non-implementation of a directive, indirect effect could still be used
Term
High water mark w.r.t removing total discretion from national courts in deciding the extent to which they are able to interpret domestic law in accordance with EU law, where the domestic law itself inadequately gives effect to the EU law
Definition
Marleasing = high-water mark for what?
Term
Wagner Miret v Fondo di Garantia Salarial
Definition
CJ stepped back from the implication in Marleasing that national courts have no discretion in deciding how far is 'as far as possible'
CJ made clear that determining how far is 'as far as possible' is a matter for national courts to determine
Term
Steiner and Woods (textbook) on Wagner Miret
Definition
Miret = a 'tacit acknowledgement by the CJ that there are limits to how far national courts will be prepared to go in applying the principle of indirect effect.
Term
Which case = the retreat from Marleasing?
Definition
Wagner Miret
Term
Webb v EMO Air Cargo No.1 [1992]
Definition
(UK) (HOL) (non-implementing legislation)
HOL conceeded to interpreting non-implementing legislation in accordance with EU law, HOWEVER, only so far as it is susceptible to such an interpretation
Term
Described the UK's approach to indirect effect...
Definition
Earlier cases of Pickstone [1989] & Litster [1990] = only willing to apply it to implementing legislation
Webb [1995] = willing to apply indirect effect to no-implementing legislation, but only so far as it is susceptible to such an interpretation
Term
Evobus Austria v Niederosterreichischer
Definition
CJ confirmed Miret - National courts are NOT required to distort the meaning of legislation, nor are they required to interpret contra legum
Consistent with it's decision in Wagner Miret, CJ confirms that it accepts that there are limitations to the interpretive obligation placed on national courts by the Von Colson principle
Term
Kolpinghuis Nijmengen BV
Definition
The state CANNOT rely on indirect effect in order to bring criminal proceedings -
Why?? Because of the principles of legal certainty and non-retroactivity
Term
Is indirect effect only applicable to directives?
Definition
No - despite the case law being mostly focused on directives.
CJ has even recognised that even recommendations and opinions can influence the interpretive obligation on the courts
Term
Justification for indirect effect
Definition
Because the national courts are part of the state, they are required (as much as the legislators) to give effect to EU legislation - Art 10 EC
Term
What is the relevant bit of EU legislation which provides the foundation for indirect effect?
Definition
Art 4(3) TOTEU
Term
Art 4(3) TOTEU
Definition
... the member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
Term
Grimaldi v Fonds des Maladies Professionelles [1989]
Definition
Indirect effect given to a recommendation
Indirect effect is NOT only applicable to directives
Indirect effect can be used with any type of EU legislation