Directives in National Courts

Directives in National Courts

Short Outline

2014

Tamara Ćapeta

Jean Monnet Chair

Faculty of Law, University of Zagreb

Apart from the courts established at the European level – CJEU, general Court, Civil Service Tribunal – all national courts of the Member States are also European courts in the sense that they are obliged to provide protection to the rights which individuals derive from EU law

Directives are frequently used regulatory instrument at the EU level. Their capacity to create rights for individuals independently of the Member States transposition measures was developed through the ECJ’s case law. So was the correspondent obligation of national courts to provide for the protection of those rights.

Federal construction of the EU – in certain areas MS transferred regulatory power to the EU

-  principle of supremacy

-  principle of direct effect

-  principle of indirect (interpretative) effect

Supremacy: EU law prevails over prior and posterior national law

(6/64 Costa v. ENEL; 106/77 Simmenthal)

Direct Effect: clear and precise provisions of EU law are directly applicable by Member States’ authorities; they create rights which national courts must protect

(26/62 Van Gend en Loos)

Indirect Effect: national law, prior or posterior, must be interpreted in accordance with EU law

(14/83 Von Colson; C-106/89 Marleasing)

Consequences of these principles for national courts

-  if EU rule has direct effect, supremacy functions as a rule of conflict: courts must dissaply concurrent national provision and directly apply EU provision

-  if EU rule has no direct effect, supremacy requires conform interpretation by the courts (indirect effects)

Vertical/Horizontal Direct Effect of Directives (overview of case law)

-  wording of Article 289 TFEU (ex 189 then 249) does not necessarily suggest that directives have direct effect

-  ECJ recognized direct effect of Directives (9/70 Grad; 41/74 Van Duyn), but it did not immediately called it so

o  Para. 12 of the judgment in Van Duyn:

“If, however, by virtue of the provisions of article 189 regulations are directly applicable and, consequently, may by their very nature have direct effects, it does not follow from this that other categories of acts mentioned in that article can never have similar effects.

-  reason for recognizing direct effect: effectiveness of EU law:

o  para. 12 of the judgment in Van Duyn:

“… the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law.”

-  several courts in Member States refused to accept direct effect of directives (French Conseil d’Etat in Cohn-Bendit /1978/; Bundesfinanzhof in Kloppenburg /1985/)

-  ECJ adds new argument: estoppel (148/78 Ratti)

o  Para 22 of the judgment in Ratti:

“Consequently a Member State which has not adopted the implementing measures required by the directive in the prescribed period may not rely, as against individuals, on its own failure to perform the obligations which the directive entails.”

-  Directives can have vertical, but not horizontal direct effect (152/84 Marshall; C-91/92 Faccini Dori); reason given by the ECJ is that directive cannot of itself impose obligations on an individual – therefore, the correlative right cannot arise based on Ratti logic

-  ‘state’ interpreted widely (C-188/89 Foster, para. 18): organizations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable between individuals.

-  effects of non recognition of horizontal direct effects: less effectiveness; discrimination within the state and among the states

-  there are scholars, including AGs, who are in favour of the recognition of horizontal effects of directives

Interpretative (indirect) effect of Directives (overview of case law)

-  in case 14/83 Von Colson, the ECJ introduced the obligation of national courts to interpret national law in conformity with directives

- Paragraph 26 of Von Colson:

«(…) in applying the national law and in particular the provisions of a national law specifically introduced in order to implement directive No 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189 .»

-  in C-106/89 Marleasing, the ECJ made it clear that the obligation of conform interpretation relates both to the national law adopted after as well as to that existing before the adoption of a directive:

o  Paragraph 8 of Marleasing:

«(…) in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.»

-  justification for obligation of conform interpretation is the duty of Member States under article 4/3 TEU (ex 10 TEC and 5 TEEC) to take all appropriate measures, whether general or particular, to ensure the fulfillment of EU obligations

-  that is why «when it interprets and applies national law, every national court must presume that the State had the intention of fulfilling entirely the obligations arising from the directive concerned» (Paragraph 20 of judgment in C-334/92 Wagner Miret)

-  limits of the obligation of conform interpretation:

o  Paragraph 28 in 14/83 Von Colson:

« (…) 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. «

-  but, see Marleasing

o  Paragraph 13 of the judgment in 80/86 Kolpinghuis Nijmegen:

«(…) obligation on the national court to refer to the content of the directive when interpreting the relevant rules of its national law is limited by the general principles of law which form part of Community law and in particular the principles of legal certainty and non-retroactivity . Thus the court ruled in its judgment of 11 June 1987 in case 14/86 Pretore de Salo v X ... that a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive «.

·  pargraph 47 of the judgment in C-105/03 Pupino:

“The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem.”

but

“47 (cont.) That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”

Order of application direct/indirect effect?

1.  court tries conform interpretation

2.  if it can interpret in conformity with EU rule, there is no conflict – it applies national rule

3.  if it cannot interpret in conformity with EU rule, there is a conflict

4.  if there is a conflict and the EU rule has direct effect, court must apply EU rule

5.  if there is a conflict and EU rule does not have direct effect, court applies national rule

- C-282/10 Dominguez

- but, compare C- 91/92 Faccini Dori

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