Indirect effect and state liability (Scope and limitations of indirect…
Indirect effect and state liability
Indirect effect - interpretative obligation
First established in Von Colson - Equal Treatment Directive: "national courts are required to interpret their national law in the light of the wording and purpose of the Directive in order to achieve the result"
"It is for the national court to interpret and apply the legislation adopted for the implementation of the Directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law"
Rationale - MS must...
Achieve the result envisaged by the Directive (Art 288 TFEU)
Take all appropriate measures to ensure Treaty obligations are fulfilled (Art 4(3) TEU)
Can apply horizontally - Harz
Applies where the National Law was not enacted to implement an EU measure, whether the legislation was adopted before or after - Marleasing
Individuals may recover compensation from a MS where they have suffered loss as a result of its failure to fulfil its obligations under EU law
Established in Francovich & Bonifaci v Italian Republic - neither direct nor indirect effect was available (can also be made available alongside them)
Full effectiveness of Community rules would be impaired and protection of rights weakened if individuals were unable to obtain redress
MS must take all appropriate measures to ensure Treaty obligations are fulfilled (Art 4(3) TEU)
The result prescribed by the the Directve should entail the grant of rights to individuals
It should be possible to identify the content of those rights on the basis of the Directive
There must be a causal link between the breach and the loss/damage suffered
Expansion - Brasserie du Pecheur/Factortame III
State liability applicable to any breach of EU law by a MS
Does not matter which organ of the State was responsible
Even if the measure has direct effect
Requirements - differs from Francovich in second requirement
Rule infringed must be intended to confer rights on individuals
Breach must be sufficiently serious
Must be a direct causal link between the breach and the damage sustained
Dillenkofer - considers tests the same in substance
Scope and limitations of indirect effect
Only required to interpret "as far as possible" - Marleasing
No indirect effect where national law expressly contradicts EU law
No requirement to interpret "contra legem" aka against clear meaning of national law - Pupino
Available only once implementation deadline has passed (Directives) - Adeneler
Kolpinghuis Nijmengen - limited by general principles of EU law, particularly legal certainty and non-retrospectivity
Cannot be relied upon independently of an implementing law, to determine or aggravate criminal liability
Only provides compensation as remedy
State liability - what is sufficiently serious?
Brasserie du Pecheur/Factortame - MS "manifestly and gravely disregarded the limits of its discretion"
Clarity and precision of rule breached
Measure of discretion left to MS by rule
Whether breach was intentional or excusable
Responsibility of EU institution in breach
Extent to which MS adopted or retained national laws contrary to EU Law
British Telecommunications - no breach found by UK government because...
Lack of precision in Directive
Good faith interpretation which not obviously wrong
Same interpretation made by other MS
Not manifestly contrary to the Directive's wording or objective
No guidance from Community institutions
Contrast with Hedley Lomas - held was a breach