Cases For Private Enforcement

Van Gend:

Asks Netherlands to refund duty paid as the increased duty was

in breach of the EC Treaty provision concerning free movement of
goods (now 30 TFEU)
National Court referred to Court of Justice, if individuals can
based on the Treaty article enforce rights before the national
court
Court ruled that the Treaties are not only an agreement creating
obligations between MS, EU law imposes obligations upon
individuals and confers on them legal rights -> thus article 30
TFEU was capable of creating direct effect in legal relations
between the MS and their citizens
Direct effect was mechanism for enforcement of individuals
rights and an additional means of supervision of the MS
compliance with the EU
From this ruling came the doctrine of direct effect
o Require national courts to apply EU law at the suit of
individuals, providing the relevant conditions are met
The measure must be sufficiently clear and precise
Unconditional
Its implementation must not be dependent upon any
implementing measure
ESTABLISHED VERTICAL DIRECT EFFECT OF TREATIES

Costa v. Enel:

Court looked at what happens when there is national legislation

post dating the treaty that conflicts with it?
o Resolved that by establishing the Community, MS accepted
a permanent limitation on their sovereign rights, creating a
body of law binding their nationals and themselves
ESTABLISHED SUPREMACY OF EU LAW OVER ALL
NATIONAL LAW

Simmenthal:

Italian Court asked whether it should disapply national legislation

which the Court of Justice had already found to violate EU law. At
this time only the Italian Constitutional Court could declare
national provisions invalid.

Court of Justice ruled that national courts must apply EU law in

its entirety
o Any conflicting laws are to be set aside
NATIONAL PROCEDURAL RULES MUST NOT CONFLICT
WITH AN EU LAW

Factortame:

Spanish fisherman claimed that the UK Merchant Shipping Act

1988 breached EU law. Due to this breach the fisherman sought
an injunction to set aside the UK Merchant Shipping Act
Under UK doctrine of parliamentary sovereignty the national
court had no power to suspend an act of parliament
Court of Justice ruled that the full effectiveness of EU law would
be impaired if a national institution rule could prevent the grant
of interim relief in relation to EU rights and therefore the national
court must set aside the Merchant Shipping Act 1988
ORDERED NATIONAL COURT TO GRANT AN INJUNCTION
AGAINST THE UK PARLIAMENT EVEN THOUGH THE UK HAD
PARLIAMENTARY SOVEREIGNTY

Defrenne v. Sabena:

Defrenne worked as an airhostess for Sabena airlines relied on

Article 157 TFEU to claim that she was getting paid less than her
male colleagues
Courts ruled in her favor even though the article which Defrenne
was relying on required further implementation
Removed requirement that further implementation could not be
required
o Effectively now one can rely on direct effect if:
The measure is sufficiently clear and precise
And Unconditional
Defrenne took on the initial use of direct effect for Treaty articles
from Van Gend and furthered it by removing the last criteria set
out in Van Gend
REMOVED THIRD CRITERIA OF NOT BEING APPLICABLE IF
FURTHER IMPLEMENTATION WAS REQUIRED AND
FURTHERED DIRECT EFFECT ESTABLISHING HORIZONTAL
DIRECT EFFECT OF TREATY ARTICLES AS WELL

Van Duyn:

Van Duyn was a woman who wanted to enter the UK to work for
the Church of Scientology. The UK immigration authorities
refused her entry on public policy grounds, that the church of
scientology was socially harmful.
Under Directive 2004/38 any restriction of free movement on
public policy grounds must be based exclusively on the
individuals personal conduct. Van Duyn argued that her
membership of the Church of Scientology did not constitute
personal conduct and, since the UK had not implemented the
directive, she sought to rely on this directive in the national
courts.
Court held that Van Duyn could invoke the Directive before the
national court, thus establishing the principle that directives are
capable of direct effect
UK had not implemented the directive so Van Duyn brought it
before the Court and the Court ruled in her favor
ESTABLISHED PRINCIPLE OF VERTICAL DIRECT EFFECT
FOR DIRECTIVES
Van Duyn established that for a directive to have direct
effect, the directive must be sufficiently clear, precise,
and unconditional

Ratti:

Established that a MS obligation to implement becomes absolute

only when the time limit for implementation has expired.
A directive cannot be directly effective until its implementation
deadline has passed

Marshall:

Marshall wanted to rely on the Equal Treatment Directive against

Southampton health authority but they were a private
organization
Courts ruled that they could not apply horizontal direct effect
ESTABLISHED THAT HORIZONTAL DIRECT EFFECT FOR A
DIRECTIVE COULD NOT BE USED AND THAT DIRECTIVES
COULD ONLY HAVE VERTICAL DIRECT EFFECT

Foster v. British Gas

Foster wanted to rely on the Equal Treatment Directive to

challenge her employers different compulsory retirement age of
women than of men

Court ruled that entities against which a directive can be invoked

include a body, whatever its legal form, which has been made
respionsible, pursuant to a measure adopted by the State, for
providing a public service under the control of the state and has
for that purpose special powers beyond those which result form
the normal rules applicable in relations between individuals
Foster established a test for public body or emanation of
the state:
o Body made responsible by the state for providing a
public service
o Under state control
o With special powers for that purpose, beyond those
normally applicable between individuals

Von Colson:

Women claimants wanted to invoked the Equal Treatment

Directive against the German prison service
Naturally one would thing that the courts would use the principle
of vertical direct effect BUT Article 6 of Directive 76/207 was
deemed not sufficiently precise
The National court must interpret the national law in the light of
the wording and purpose of the Directive
This is now known as indirect effect -> national law must
be interpreted in accordance with relevant EU law.
Established Indirect Effect

Marleasing:

Certain provisions of Spanish company law conflicted with the

Company Law Directive 68/151, which Spain had not
implemented.
The two parties involved were private parties so the directive
could not have vertical direct effect
As in Von Colson the national courts referred to the duty of the
national courts to, as far as possible, interpret national law,
whether adopted before or after a directive, in the light of the
wording and purpose of the directive
CONFIRMED THAT INDIRECT EFFECT HAS WIDER SCOPRE
THAN VON COLSON HAD MADE APPARENT
o FURTHERED THE IDEA OF INDIRECT EFFECT BY
SPECIFYING THAT IT APPLIES TO NATIONAL
LEGISLATION BEFORE AND AFTET THE DIRECTIVE,
REGARDLESS OF ITS INITIAL PURPOSE

ALSO ESTABLISHED A LIMIT, THAT NAITONAL COURTS CAN

ONLY INTERPRET NATIONAL LEGISLATION AS FAR AS
POSSIBLE

Francovich:

Directive 80/987 required MS to ensure that schemes were in

place to guarantee funds covering unpaid wages when
employees were made redundant on their employers insolvency
Italy did not implement the directive and set up no such scheme
The Court held that the provisions were insufficiently clear to be
held for direct effect under a directive
The Court stated that the
Francovich became unemployed and there was no fund for him
to get money from because Italy had failed to carry out the
directive and establish the said fund
Mr. Francovich was suing Italy and was in a vertical situation
suing the state but the problem was that the conditions were not
met for the directive to apply direct effect
This was deemed a conditional right so they could not rely on
direct effect
He could not rely on indirect effect because there was no
national law that could be used in light of the directive
Mr. Francovich sued the Italian state under the Italian rules for
suing the state when the state does something wrong
Lawyer argued that there should be an EU law that outlines
damages to state for breaching EU law and that it should be
harmonized across all states harmonized set of remedies when
the government screws up
Important in the treaty and in article 5 member states must
take all necessary principles to ensure that eu law is followed
It is inherent in the scheme in the treaty that under EU law the
member states should reimburse the nationals if they fail to
cooperate with EU law only applies to EU law
Established principle of state liability for non
implementation
There are 3 criteria established to determine whether or
not a MS will be liable to an individual for damages:
o Does the directive grant rights to individuals
o Is the content of those rights identifiable from the directive
This was dropped
o There is a causal link between the breach and loss suffered

Principle of effectives must also be applied to damages

awarded

Essays could be on either van gend or francovich

Brier case

and factortame 3 (continuation of factortame 3)

These are the new conditions to be used in any problem questions

which are reformed from francovich:
Treaty article must confer rights to individuals
The breach must be sufficiently serious
There must be a causal link between the breach and the damage
Factortame 3 criteria and more
1.

2.

Treaty article must confer rigts to individuals

Does the directive directly benefit individuals
Breach must be sufficiently serious
There must be a judgement of the court stating that the state is
in breach or case law that shows that the state is in breach

Ex Parte BT Also applies to incorrect implementation of directive

Precision of the directive provision
o Must look at how precise the directive was worded
Was interpretation of the directive/treaty article manifestly
incorrect
o Look at whether or not the interpretation that the state
gave to the directive was blatantly incorrect
o If you blatantly dont implement the directive that in itself
is a sufficiently serious breach
3. There must be a causal link between the breach and the damage
/ loss
Question that member states nationals have to figure out
Member state liability applies whether or not a provision has direct
effect or not
Was created partly because people didnt have direct effect and didnt
have indirect effect therefore they have no remedy
This can be applied irrespective of if someone has direct effect or not

Van Gend vertical direct effect of treaty

Establishes direct effect doctrine
Establishes direct effect for treaty
o Establishes vertical direct effect of treaties
Established a new legal order whereby states sovereign rights
are limited within certain fields
o Direct effect is only applicable providing certain
qualifications are present
Sufficiently clear
Precise
Unconditional
Doesnt require further implementation
Costa supremacy of EU law
Established that EU law is supreme over all national law
Simmenthal supremacy of EU law in ALL INSTANCES
Established that in a case of conflict between EU law and
national law EU law is supreme
Further clarified that EU law is supreme in all instances
Factortame
Furthered concept of supremacy of EU law
Defrenne v. Sabena 2 Horizontal direct effect of treaties
Used Van Gend and established horizontal direct effect of treaties
Loosened the conditions for direct effect
o Removed the notion that treaty articles could not require
further implementation
Munoz
Confirmed that regulations can have both vertical and horizontal
direct effect
Van Duyn vertical direct effect for directive
Established that there is vertical direct effect for directives
Used the Van Gend criteria and this is the test for direct effect for
directives
o Directive must be:

Clear
Precise
Unconditional

Ratti directive cannot be directly effective until

implementation deadline has passed
Further clarified Van Duyn
Established that a directive cannot be directly effect until its
implementation deadline has passed
Marshall no horizontal direct effect of directive
Established that directives cannot have horizontal direct effect
o ONLY vertical direct effect
Foster emanation of the state
Established concept of emanation of the state due to lack of
horizontal direct effect for directives
Set out criteria for emanation of the state
o Must provide a public service
o Must be under control of the state
o Must have special power/authority
Riesor
Reinforced Foster case and vertical direct effect for emanation of
the state
Von Colson indirect effect
The directive set out was not sufficiently clear and precise,
therefor could not apply direct effect
Established principle of indirect effect
o National court must look at national law and interpret in
light of directive
Marleasing furthered indirect effect / attached limit to
indirect effect
Applied Von Colson case for indirect effect
Furthered indirect effect stating that national courts must
interpret national law in line with directive regardless if they
were enacted before or after directive

Established that indirect effect can only be used by national

courts as far as possible
o Interpret national legislation in line with directive, as far
as possible

Facini Dori
Reinforced Marshall
Francovich and Bonifaci state liability
Established state liability
o Provided certain qualifications:
Does the directive grant rights to individuals
Is the content of those rights identifiable from the
directive
There must be a causal link between the breach and
the loss suffered
Brasserie De Pecheur / Factortame 3 changed criteria from
Francovich for state liablilty
Reinforced state liability
Provided reformed qualifications (changed 1 qualification):
o Treaty article must confer rights to individuals
Directly benefit individuals
o *NEW* - The breach must be sufficiently serious
Must be judgment from court stating that state is in
breach / or case law showing that state is in breach
o There must be a causal link between the breach and the
damage
MS nationals figure this out
Dillenkofer furthers state liability
Provides that non implementation of directive is a sufficiently
serious breach