Protection of EU Law Rights in National Courts

This assignment discusses the importance of direct effect, indirect effect, and state liability in protecting EU law rights in national courts. It analyzes various cases such as Corrado Politi v European Training Foundation, Factortame III, Defrenne v Sabena (No 2), and Francovich v Italy to illustrate how these doctrines work effectively in different jurisdictions.

Running head: EU LAW
European Union Law
Name of the student
Name of the university
Author note

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Introduction
According to the legal order of Sovereignty of the European Union, a new legal order in
international law had been constituted by the community and under the benefit of such law the
member states will compromise with their right of sovereignty in limited areas. The EEC treaty
establishes a self created legal system which is to be taken as a core part of the legal structure of
the member states. In the given situation EU law prevails over national law in case of dispute.
These principles have been discussed in the case of Costa v ENEL1. The purpose of the paper is
to “discuss and evaluate the doctrines of direct effect, indirect effect and state liability developed
by the Court of Justice of the European Union”
The paper provides a discussion in relation to direct effect in terms of treaty articles,
regulations, and directives, indirect effects in terms of application and significance and strict
liability damages which is a method of overcoming shortcomings of the direct and the indirect
effect in the light of various cases. The paper then comes to an appropriate conclusion in relation
to the essay topic.
Direct effect
According to Willam (2016) through the principles of direct effect an individual is
provided the right to invoke a European ruling immediately before a European or national code.
Apart from being related to only a very limited European legislation there are several condition
imposed on the principle2. Along with the principles of precedent the direct effect of European
law is in integral principle in European law. The principle had been enshrined by European union
1 Flaminio Costa v ENEL (1964) Case 6/64; Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle
für Getreide und Futtermittel (1970) Case 11/70; Finanze v Simmenthal SpA (1978) Case 106/77; R (Factortame
Ltd) v Secretary of State for Transport UKHL 7; C-213/89
2 Phelan, William. "Supremacy, direct effect, and Dairy Products in the early history of European
law." International Journal of Constitutional Law 14.1 (2016): 6-25.

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court of justice. Through the principle irrespective of whether there is existence of national law
test an individual may invoke European law before courts. The application and effectiveness of
EU law in European countries is ensured through the direct effect.
In the judgment of Van Gend en Loos the court of justice enshrined the direct effect of
European law. It had been stated by the court in this judgment that along with engendering
obligations for EU countries the European law also has rights for individuals. Thus as a part of
making use of such rights individuals have the right to directly invoke European Acts before
national and European law3.
Treaty articles
The principle of direct effect had been created by the ruling of Van Gend. Treaty article
have the capacity of direct effect. Thus a treaty cannot be regarded as merely an agreement
which imposes obligations on the parties to it. In the same way obligations have been imposed
upon individuals by the EU law along with providing them with specific rights. The direct effect
of the treaty articles depends upon the principles which had been created in the Van Gend
judgment. This means that the measures have to be adequately clear, unconditional and precise
and further the implementation must not depend upon implementation of any measure.
Subsequently these conditions may be loosened and reworked as it had been done in Defrenne
where it had been stated that the measures have to be precise, adequately clear and
unconditional4.
3 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62
4 Defrenne v Sabena (No 2) (1976) Case 43/75

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Direct effects can be divided into two aspects which are Vertical direct effect and
horizontal direct effect. A vertical direct effect results out of relationship between the country
and individuals. According to this effect European law may be invoked by individuals with
respect to the country. On the other hand horizontal direct effect results out of relationships
between the individuals itself. Here European provisions can be invoked by individuals in
relation to one another5. Based on the kind of situation which constitutes the act either a full or
partial direct effect is accepted by the court of justice. In the judgment of Van Gend although it
was made clear in relation to treaty articles that they have capacity of direct effect had been
provided the question in relation to its horizontal direct effect had not addressed. In the other
hand it had been ruled in Defrenne that treaty articles have the capacity of being horizontally
invoked. Since the decision of Defrenne and Van Gend various treaty articles have been held to
have horizontal and vertical direct effect which includes provisions of internal markets as well. A
few significance which the “effect” holds for individuals include the ability of invoking the
provisions in national court and also the ability to invoke treaty rights against other individuals
and the state.
Regulation
As provided in Leonesio and Politi regulations are capable of having a horizontal and
vertical effect and are to be subjected to the same situations which are imposed in the case of
treaty articles6.
Directives
5 Nollkaemper, André. "The duality of direct effect of international law." European Journal of International Law
25.1 (2014): 105-125.
6 C-154/99 P. Corrado Politi v. European Training Foundation; Leonesio v Ministero Della Agricoltura E Foreste
[1972] ECR 287, R-93/71

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According to Article 288 TFEU directives have to be incorporated in terms of the
national law. Originally it was thought that the directives do not have the capacity of having a
direct effect and it was believed that they are not meant to act as legal provisions in the national
system as such role is provided to the particular national implementing measures. It was thought
that they are only addressed to the members’ state and did not have the capacity of directly
affecting individuals. The directives were seen as a tool through which the member states are
provided a wide discretion in relation to implementation and were only binding with respect to
the outcome which was to be achieved. Thus directives were considered as not being precise and
fulfill the test provided by Van Gend7.
However it haad been stated by the judgment of Van Duyn that directives have the
capacity of being effective directly in situation where they are precise, clear and unconditional8.
In the judgment of Ratti it had been ruled that the deadline of implementation must have passed.
This means that it would not be fair to allow a directive to be invoked in relation to a member
state until it has absolute obligation of implementation9. In the same way it would also not be fair
to permit a member state to put its reliance on failure of implementation for the purpose of
avoiding the obligations under the directives. In Van Duyn the horizontal direct effect of the
directives had not been addressed. In the judgment of Marshall it had been stated that directives
can be only vertically invoked against a public authority or the state and not horizontally. The
ruling was reiterated in the judgment of FacciniDori10. According to Marson, James and Ferris
7 Robin-Olivier, Sophie. "The evolution of direct effect in the EU: Stocktaking, problems,
projections." International journal of constitutional law 12.1 (2014): 165-188.
8 Van Duyn v Home Office (1974) C-41/74
9 Pubblico Ministero v Ratti (1979) Case 148/78
10 Paola Faccini Dori v Recreb Srl (1994) C-91/92

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(2015) the decision of the COJ to not allow directives to be invoked in a horizontal manner is an
unfair and anomalous11. In context of employment, individuals who have been employed by a
public body or the state have the capacity of invoking rights provided by the directives against
the employer. On the other hand those who work for private employers do not have the right to
do so.
In response to the situation the COJ made a referral to the EU legal order. According to
this rights provided through the directives have to be incorporated in national measure of
implementation on which a claimant can rely upon in national courts. Thus only the member
states are to be made liable for the failure of the state to implement the directives and not the
individuals. However the approach had been mitigated through state liability, wide interpretation
of public body and indirect effect. In the judgment of Foster it had been held that a public body
is a body which is responsible, in relation to the measures taken up by the states, for given under
the control of the state a public service and has been provided special powers in relation to this
purpose and these powers are more than what are normally provided to govern individual
relationship. The test had been applied in the cases of Becker, Fratelli Costanzo, Johnston12.
The doctrine of supremacy and direct effect are immensely significantly. It mandates
national courts at the suitability of individuals to apply the EU law where there is any conflict
with national law. Thus the national courts have the duty of not applying any national measures
which are not consistent with directly effective provisions of EU. In situation where the member
state has committed a failure to meet its obligations of implementing EU law and where
11 Marson, James, and Katy Ferris. "The transposition and efficacy of EU rights. Indirect effect and a coming of age
of state liability?." Business Law Review 36.4 (2015): 158-168.
12 Foster v British Gas plc (1990) C-188/89

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implementation has been defective or partial direct effect is especially important. Through this
effect a way for enforcing the EU rights of the individuals. It also provides a way of supervising
the member states compliance with the EU obligations.
Indirect effect
Indirect effect are especially significant in relation to the purpose of overcoming the
limitations of direct effect specially when they are in relation to a horizontal direct effect or in
situation where the provisions are not provided in a sufficiently clear manner. In the case of Von
Colson and Kamann v Land Nordrhein-Westfalen13 it had been ruled by the court that it is the
duty of the national courts to give meaning to national law in compliance with the directives, so
far as it is provided the discretion to carry out the action under national law14. Where this case
dealt with a situation where a state had not implemented the directives properly in another case
of Marleasing v La Comercial Internacional de Alimentacion and indirect effect had been
extended to the situation by the ECJ where the directive had not been implemented at all by the
member state. Although indirect effect as great significance with respect to directives, opinions
and recommendations may have indirect effect as well. Unlike directives there is no biding force
which opinions and recommendations have. In the case of Wagner Miret it was stated that the
principals of the Marlesing case may not be applicable always and thus it is subjected to
limitations. In the case of Webb v EMO Air Cargo15 it had been stated that indirect effect is
applicable on pre dating and post dating legislations. However it had been ruled in the case of
Grimaldi v Fonds des Maladies Professionnelles that as opinions and recommendations should
13 Von Colson v Land Nordrhein-Westfalen (1984) Case 14/83
14 Case 14/83 [1984] ECR 1891 at para 28.
15 Webb v EMO Air Cargo (UK) Ltd (No 2) (1994) C-32/93

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gave a form of legal effect, they should not be considered in dealing with those measures which
they were supposed to support16.
State liability in damages
According to James (2016) strict liability in damages is a measure which acts as a way of
overcoming the shortcomings of direct and indirect effect17. In the case of Francovich it had been
stated by the court that as a result of the failure on the part of the state to implement the
directives is damages to the aggrieved party18. The liability would be only applicable in the
situation where the directive contains provisions in relation to granting of rights to the
individuals, the content in relation to such rights can be identified and there is a link between the
loss occurred and the failure committed by the state. In the case of Factortame III the court
ruled in relation to damages which result out of other forms of breach19. Here it was provided
that the state would be liable in situation where the EU has the intention of providing a right to
the citizen and the right has been breached, the breach is sufficiently serious and there is a link
between the loss and the violation. In this case provisions in relation to a ‘Sufficiently serious
breach’ which means that ‘Manifest and grave disregard of the limits on its discretion’ had been
provided. The factors to be considered are whether there is clarity and whether it can be excused.
The application of the case is done in relation to legislations which infringe EU law and where
directives have been implemented incorrectly. In addition in Hedley Lomas where there was
administrative breach and where there was incorrect interpretation by national court as in
Köbler20
16 Case C-106/89, [1990] ECR I-4135.
17 Hand, James. "Discrimination law and the ebb and flow of indirect effect in Britain." Liverpool Law Review 37.3
(2016): 119-136.
18 Francovich v Italy (1991) C-6/90
19 Case C-46/93 Factortame III [1996]
20 Köbler v Austria (2003) C-224/01

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Conclusion
Therefore it can be concluded form the above discussion that direct effect, indirect effect
as well as state liability have a very important role to play towards the protection of the rights
provided to an individual by the EU law in national courts. Where the direct effects fail, the
indirect effect is brought for the purpose of addressing the situation. In addition where there is a
failure on part of both the direct and ten indirect effects the concept of strict liability in damages
comes into for the protection of the EU law rights to the individuals. It has been seen through
analysis of various cases that the doctrines are working effectively in the respective jurisdictions.

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Bibliography
C-154/99 P. Corrado Politi v. European Training Foundation
Case C-106/89, [1990] ECR I-4135.
Case C-46/93 Factortame III [1996]
Defrenne v Sabena (No 2) (1976) Case 43/75
Finanze v Simmenthal SpA (1978) Case 106/77
Flaminio Costa v ENEL (1964) Case 6/64
Foster v British Gas plc (1990) C-188/89
Francovich v Italy (1991) C-6/90
Hand, James. "Discrimination law and the ebb and flow of indirect effect in
Britain." Liverpool Law Review 37.3 (2016): 119-136.
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und
Futtermittel (1970) Case 11/70
Köbler v Austria (2003) C-224/01
Leonesio v Ministero Della Agricoltura E Foreste [1972] ECR 287, R-93/71
Marson, James, and Katy Ferris. "The transposition and efficacy of EU rights. Indirect effect
and a coming of age of state liability?." Business Law Review 36.4 (2015): 158-168.
Nollkaemper, André. "The duality of direct effect of international law." European Journal of
International Law 25.1 (2014): 105-125.
Paola Faccini Dori v Recreb Srl (1994) C-91/92

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Phelan, William. "Supremacy, direct effect, and Dairy Products in the early history of
European law." International Journal of Constitutional Law 14.1 (2016): 6-25.
Pubblico Ministero v Ratti (1979) Case 148/78
R (Factortame Ltd) v Secretary of State for Transport UKHL 7; C-213/89
Robin-Olivier, Sophie. "The evolution of direct effect in the EU: Stocktaking, problems,
projections." International journal of constitutional law 12.1 (2014): 165-188.
Van Duyn v Home Office (1974) C-41/74
Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62
Von Colson v Land Nordrhein-Westfalen (1984) Case 14/83
Webb v EMO Air Cargo (UK) Ltd (No 2) (1994) C-32/93