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Topic 5.2: The EU Legal Order II: Direct Effect, Indirect Effect and State…

- - - - C-413-15 Farrel:
        
        CJEU ruled that the Foster conditions are not conjunctive (not linked). An emanation of a State can include private bodies on which an MS has conferred a task in the public interest (to comply with EU law), and which for that purpose, possesses by statute special powers
      - The Following have been held to constitute an emanation:
        
        Public authorities providing public health services (Marshall No.1)
        
        Tax authorities (Becker)
        
        Authorities responsible for the maintenance of law and order.
        
        Local or regional authorities (Constanzo)
        
        Nationalised industries (Foster)
        
        Private bodies delegate with tasks which benefit the public interest (Farrell)
  - - - Advantages:
        
        Independent of direct effect
        
        No need for the provision to be clear, precise and unconditional
        
        Can apply to horizontal disputes
        
        Disadvantages:
        
        Implies there must be national law in existence capable of interpretation
        
        National court cannot interpret national law contra legem
        
        National court cannot impose criminal liability retroactively
- - - - cont
        
        The CJEU confirms that principle of non-discrimination on grounds of age is a general principle of EU law given expression in Dir 2000/78 and Art 21(1) of the Charter [20-22]
        
        The principle of non-discrimination on grounds of age applies where the case falls within the scope of Union law [23-26]
        
        National law which does not comply must be disapplied by the national courts [to give effect to the general principle rather than the directive] (Mangold) [51]
- - - - Where a MS manifestly and gravely disregards the limits on its discretion
        
        Factors national court must take into account
        
        Clarity and precision of the rule breached
        
        Discretion
        
        International or involuntary
        
        Excusable or inexcusable
        
        Role of the Union Institutions
        
        Existence of incompatible measures
      - Uniform test for liability?
        
        C-178/94 Dillenkofer
        
        Non-implementation of a directive
        
        Should the test in Francovich or Brasserie du Pecheur & Factortame (No.3) apply?
        
        CJEU = Brasserie du Pecheur & Factortame (No.3) should apply
        
        Added that non-implementation of a directive is automatically a sufficiently serious breach
        
        If the provision has direct effect, then the first condition is automatically satisfied
- - - - Joined Cases C-569/16 Stadt Wuppertal v Bauer & C-570/16 Wilmeroth v BroBonn, EU:C:2018:871
        
        Mrs B and Mrs B were widows and brought actions against their husbands' employers for payment of an allowance in lieu fo the paid annual leave not taken by their spouses before their death
        
        C's relied on Art 7 of Directive 2003/88 (Working Time Directive): all workers to annual paid leave of at least 4 weeks + it cannot be replaced by a payment in lieu except where employment relationship is terminated (C-118/13 Bollacke - entitlement cannot be lost upon a person's death)
        
        Or
        
        Article 31 (2) EUCFR - 'Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave'
        
        CJEU held that the widows were entitled to payment BUT
        
        Referring court was of the view that it was NOT possible to interpret national law to conform with EU law as per Domiguez
        
        So is the national court under a duty to disapply conflicting national law, even in a dispute between private parties (no horizontal direct effect of directives in BroBonn)?
        
        Right to paid annual leave constitutes an essential principle of EU social law which is derived from the Community Charter of the Fundamental Social Rights of Workers and international instruments e.g. European Social Charter
        
        Art 31(2) is mandatory "every worker' and 'right') and unconditional in nature
        
        If national law cannot be interpreted to comply with Art 31(2), national court must disapply the conflicting national law 'to ensure... the judicial protection for individuals flowing from that provision and to guarantee the full effectiveness thereof by disapplying if need be that legislation.'
        
        Art 51(1) EUCFR (addressees of the EUCFR) cannot be interpreted as systematically preventing Art 31(2) from imposing an obligation on an employer
        
        = 31(2) EUCFR can be applied in relations between 2 private parties (horizontal direct effect)
        
        (see also C-414/16 Egenberger - Art 21(1) EUCFR - 'Any discrimination based on any ground such as sex, race, color, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.'