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Indirect Effect

State Liability

Definition of the State

Direct Effect & Directives

Vertical Direct Effect

Horizontal Direct Effect

Direct Effect

Doctrine of Supremacy

Positive Obligations

Francovich & Bonifaci v Italian Republic [1991]

Von Colson & Kamann v Land Nordhein-Westfalen [1984]

Foster v British Gas plc [1990]

Marshall v Southampton & SW Area Health Authority [1986]

Van Gend en Loos [1963]

Costa v ENEL [1964]

Van Duyn v Home Office [1974]

Lvtticke (Alfons) GmbH v Hauptzollamt Saarlouis [1966]

Defrenne v SABENA (No 2) [1976]

Foster, an employee of British Gas, then a nationalized monopolist, sought to rely on Directive 76/207 as company policy on retirement ages was discriminatory

Francovich was owed outstanding wages after his employer went bankrupt and could not recover lost wages because Italy had failed to establish a fund for this purpose as set out in Directive 80/987

CJ held Italy liable for not implementing the directive under Article 10 EC

Dutch scientologist offered work in London was refused entry into the UK argued the refusal was in breach of Directive 64/221 which laid out the scope to which member states could derogate from Article 45 TFEU re: free movement of workers in the EU

CJ held that Van Duyn could indeed rely on the directive being directly effective against the Home Office

concerned Article 110 which at its introduction included a provision requiring member states to remove by 1962 any existing internal taxation measures which discriminated against goods of other member states

CJ held that no discretion was left to member states to give effect to the positive obligation once the deadline had passed

air hostess Defrenne brought suit against Belgian airline SABENA for gender discriminatory pay as infringement of Article 141

CJ held that language of Article 141 was suitably clear, precise, and unconditional to establish a right to equal pay which could be exercised both vertically and horizontally

two female social workers were rejected for jobs in favour of less qualified male applicants, and relied on the Equal Treatment Directive as implemented by German law

Von Colson argued that the national law failed to properly implement the directive given that redress was limited to reimbursing travel expensives and hence not an effective remedy as laid out in Article 6

CJ found that Article 6 was not sufficiently clear to be directly effective but that national courts are required under Article 10 EC to interpret domestic laws implementing a directive in conformity with the wording & purpose of the directive

Dutch importer of urea formaldehyde from West Germany argued an increase in custom duties caused by the authorities' reclassification of the product infringed Article 25 EC

VGL argued that such EC articles gave rise to individual rights enforceable in national courts

CJ held Article 25 created rights and obligations with direct impact not only on member states but also upon citizens of those states

Costa, a shareholder in an electricity company nationalized by the Italian government refused to pay his electricity account, claiming the nationalization

legislation was contrary to Community law

Italian government argued the case 'inadmissable' as national courts were obliged to apply the nationalization legislation as the expression of Parliament

CJ held that national couts could not accord precedence to unilateral national law over Community law accepted on the basis of reciprocity

female dietician Marshall employed by Southampton Health Authority was forced to retire at age 60 (males could continue to work until 65) and argued the health authority was in breach of the Equal Treatment Directive

Marshall argued the health authority was an 'organ' of the state and therefore a part of the state; despite the fact that the state was acting in the capacity of employer rather than public authority in this situation, vertical effect could be applied

CJ held that because a directive placed an obligation only on the member state, it could not be relied upon against a private individual who has no responsibility for the directive's implementation

allowed claimants to recover loss from the government where such loss is caused by the member state's failure to implement a directive or uphold Treaty obligations

(1) 'for providing a public service'

(2) 'under the control of the state'

(3) has purposive 'special powers'

set out 3 criteria to determine whether a body was an 'emanation of the state' whatever its legal form:

since then, these criteria have been applied loosely by national courts, first cumulatively then alternatively

imposed a duty on national courts to interpret national law in conformity with the relevant EU directive and so give effect to rights irrespective of whether the case is vertical or horizontal

Brasserie du Pecheur SA v Germany [1996]

established that direct effect rights arising from directives cannot be enforced horizontally against private parties but solely vertically against the state

confirmed that directives can be directly effective as long as the VGL conditions are met

established the supremacy of EU law over national law: where conflict arises between the two, EU law must prevail

confirmed that EU provisions could be directly effective where they produced a positive obligation v. a negative obligation on member states as in VGL

established that direct effect established via regulations could be applied horizontally to include contracts between individuals as well as vertically against the state

effectively, CJ expanded the enforceability of Community law beyond the Commission (Article 258 TFEU) and member states (Article 259 TFEU) to individuals before their national courts

French brewers were stopped from exporting beer to Germany and claimed damages from Germany

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2

Marleasing SA v La Comercial Intl de Alimentacion SA [1990]

Doughty v Rolls Royce plc [1992]

set out 3 conditions to establish state liability:

similar facts as given in Marshall

CJ upheld principle that rights established in a directive cannot found a claim against a private individual

set out the conditions for such provisions that give rise to direct effect:

Marleasing, creditor of La Comercial, sought to annull contracts with La Comercial under grounds established by the Spanish Civil Code which was not recognized in an unimplemented Company Law Directive 68/151

CJ found that conflict between the directive and Spanish domestic law must be resolved in favour of the directive

EU Law and National Law

(1) rule of law infringed must be intended to confer rights;

(2) the breach must be sufficient serious; and

(3) direct causality must be established btween the breach by the state and the damage sustained by the injured parties

confirmed that direct effect from directives cannot be used to bring a claim against private individuals

'sufficiently clear and precise'

'unconditional'

expanded the scope of indirect effect to include all national law, not just implementing laws

the provision must be 'legally complete' such that a national court can give effect to it without any further action by the member state

the provision itself must not leave any discretion to the member state as to whether or not the right is to be given effect

Direct Applicability

compare to...

refers to the manner through which regulations set down by the Community comes into force, i.e. without further action by the member states

direct effect can arise from both regulations and decisions so long as the conditions above are met; recommendations and opinions, being non-binding, are never directly effective

direct effect can also arise from directives once the deadline for implementation has passed

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