EU Law and Municipal Law

Table of Contents
EU Law and Municipal Law Key Points Introduction Municipal Enforcement Dualism Monism Jurisdiction of the Courts of Danzig Van Gend en Loos C-26/62 Primacy and Direct Effect of EU Law Vertical and Horizontal Rights Secondary Measures Regulations Directives Decisions Recommendations and Opinions The direct effect of secondary measures Regulations Decisions Directives Conditions for direct effect Emanations of the State Primacy and Directives Purposive Interpretation and Directives Purposive Interpretation and Criminal Liability Special Situations Triangular Situations Incidental effects During the implementation period General Principles of EU Law and Directives Horizontal direct effect and primacy Section 18 European Union Act 2011 You be the Judge : EU Law and Municipal Law Key readings

Key Points
This essay considers the following issues: The way in which international law applies to municipal law.
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How EU law, as a form of international law, applies in the Member States. The range of EU legal instruments that bear on municipal law. The relationship between primacy and direct effect in EU Law. The different mechanisms for municipal enforcement. The legal issues that arise in relation to Directives. The possible horizontal legal effect of Directives.

Introduction
European Union law seeks to promote integration among the legal orders of its Member States. The essential driving force towards integration is the political will of the Member States when they sign Treaties. The Treaties have established competences to take action, and institutions to achieve integration in various fields. The institutions implement the competences that they have been given through legislation and policy initiatives. EU law, then, in general terms, comprises of the Treaties and the legislation made under them. At the international level, the process of implementation is delegated to the Member States who must do their best to do so, pursuant to their duty of faithful cooperation in Article 4(3) TEU. The processes of implementation at the municipal level will differ according to the method by which the EU has regulated the field in question. For example, provisions are made in a Treaty to take action in a field, and there is a choice as to the kind of measures to take and a timeframe in which those measures are decided on by the institutions. From one viewpoint, the process of implementation is clearly an international one, involving the Member States in the EU. From another viewpoint, at national level, individual citizens will see change in their legal environment, after the national implementation process has taken place. The changes brought by the implementation of Union law make a difference for us all. For example, the Union has competence in fields such as social policy, transport, environment, information technology, the single market, competition and the Euro, amongst others. Once law is made on these issues then change will be felt, after implementation has taken place at municipal level. Depending on what the situation was before the EU legislates, then the law may be subject to some change; possibly some significant change. This change brought about could have an effect on the relationship between individuals with their own municipal authorities and/or the relations between individuals with each other. The changes to the legal relationships that should be brought about
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may be highly advantageous. For example, the TFEU promotes equal pay in Article 157, and this is of interest to female workers who feel disadvantaged by unequal pay. Legislation that has been adopted by the EU has regularly provided advantages for its citizens. For example, Directive 76/207 developed rules relating to equal treatment at work to a greater extent, providing that it all working conditions were to be put on an basis of equality. In another example, Directive 64/221 provided that the right of free movement and residence of Member State nationals could be derogated from only in certain specified conditions. In one final example, Directive 80/987 set guarantee payments to be made for outstanding wage claims that would be paid out to unfortunate employees, if their employer became insolvent. The benefits and advantages conferred by Union law will take effect when the law is correctly implemented at municipal level. Difficulties can arise in correctly implementing the law, however. It may be that the Union law is not entirely clear, and so implementation is difficult. On the other hand, it may be that the Member State is rather reluctant to implement it properly. Non implementation can therefore be a serious problem. It leads to differences across the Member States, as to the legal advantages that citizens are entitled to. The objective of legal harmonisation is not being reached.

Municipal Enforcement
The use of the Treaties or other forms of EU law, in order to create rights and obligations that are enforceable at municipal level, involves international law becoming effective at municipal level. The issue of how international law can have an effect on municipal law involves the consideration of legal theory. There are two main theories about how international law relates to municipal law. One is the theory of dualism, and the other is the theory of monism.

Dualism
Dualist
Terms pacta sunt servanda Public International Law

Dualism is a theory of public international law that considers municipal law and international law to be entirely separate. There is no conflict between them, because the subjects of the law cannot be the same in both legal systems. International treaties are only effective at an international level. Each system's application is determined quite differently: one corresponds to relationships between states while the other to interpersonal relationships. Public International Law cannot rule over the relationships between individuals at an internal level, according to this theory.
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For an international treaty to be applied inside a contracting state it is necessary for that state to adopt the legal measures from the treaty into municipal law or to introduce it through a legal plan that allows for its admission. Either way, there must be a nationalisation of the treaty. The international provision passes through a transformation, that allows it to be applied as an internal regulation, part of internal and not international Law. The municipal and international legal systems are different through their source of law. Municipal law originates from the will of the state itself, while international law is based on the common will of contracting states. As a result, the mandatory force of municipal law provisions is represented by the national constitution, while the basis for international law is represented by the principle of pacta sunt servanda. An example of a state that takes a dualist approach towards international law is the United Kingdom. In addition to signing and ratifying a treaty, a specific piece of legislation is required to make the treaty part of the municipal legal order.

Terms : Public International Law: "that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also: a) the rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with states and individuals; and b) certain rules of law relating to individuals and non-states so far as [their rights and duties] are the concern of the international community." Shearer, in Starkes International Law, 11th ed (London: Butterworths, 1994), p.3

Terms : Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith: Article 26 Vienna Convention on the Law of Treaties 1969. Pacta sunt servanda is based on good faith. This entitles states to require that obligations be respected and to rely upon the obligations being respected. This good faith basis of treaties implies that a party to the treaty cannot invoke provisions of its domestic law as justification for a failure to perform its international obligations.

Monism
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Hans Kelsen (1881-1973)

The legal philosopher, Hans Kelsen, an Austrian Jurist, developed the legal theory of monism in public international law. Kelsen did not accept the dualist approach towards international law. He thought that if there were two independent legal systems existing side by side, as dualists argued, then it was illogical that the laws on both of them must be legally valid at the same time. Kelsen thought that international law applies directly upon a states internal legal order. Therefore international law interpenetrates national law and applies immediately, without being admitted or transformed within the legal systems of the state. An international treaty integrates into the system of regulations that need to be applied by the national courts, and its rules can be applied by the courts. An example of a state that takes monist approach towards international law is the Netherlands. Signing and ratifying a treaty is sufficient to make that treaty a part of the national legal order.

Jurisdiction of the Courts of Danzig

International law (strictly speaking, public international law) is about the relations between states and international organisations. EU law is international law, and because individuals are not the subjects of international law, then it was quite arguable that EU law did not "apply" to them at all, but only to the participating states. In the usual way of things, Treaties have very little to say about municipal affairs, because they do not encroach onto municipal law. They can occasionally do so, however, and an example of this can be seen in the case of
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In the Jurisdiction of the Courts of Danzig case 1928 P.C.I.J. (ser. B) No. 15 (Mar. 3), the Permanent Court of International Justice (the forerunner of the United Nations International Court of Justice) in an Advisory Opinion, made a number of important statements about the relationship between international law and municipal law of the states that are a parties to it. The Free City was created after world war one. The League of Nations (forerunner of the United Nations) decreed that it was to be exist in between Germany and Poland. The Free City was not an independent state, Poland was to run its railway network and had other favourable terms with it. Treaties were signed to define the relationship between Poland and Danzig. Poland argued that its agreement with Danzig that fixed the conditions of employment of Danzig railway officials, gave no right of action on behalf of these officials before municipal courts in Danzig. The agreement with Danzig was a treaty, enforceable only as between the state parties to it, and it was argued by Poland that it created no rights for private individuals, but only involved Polands responsibility towards Danzig. Arguably, it could not be enforced before the Courts in Danzig. The PCIJ observed that : "...an international agreement cannot directly create rights and obligations to private individuals. " Nevertheless, it also said that : "it cannot be disputed that certain rules that create rights and obligations for the individuals and are susceptible of application in national courts could represent the object of an international agreement if this would be the intention of the signatory parties ". The Court was of the opinion that certain Danzig railway officials could bring an action before the Danzig courts against the Polish state railways for recovery of compensation payable under the international agreement binding between Poland and Danzig. The issue is whether international law can be a source of rights or obligations for individuals. From the Advisory Opinion in the Courts of Danzig case, the wording that the Treaty uses is regarded as the main issue. It was not clear from the original Treaty of Rome in 1957 that it was intended to be a source of rights and obligations for individuals either.

Van Gend en Loos C-26/62

At international level the European Commission has responsibility for monitoring the correct implementation of Union law. This will require the
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Commission being aware of the situation and determining that it needs to take proceedings to get things into line. At municipal level, citizens will be at a disadvantage while the law remains incorrectly implemented. The disadvantage that they suffer relative to their current position can be said to be an "implementation gap". The wider the gap, the more serious the disadvantage that is felt. Returning to the times of the days of the European Economic Community back in the late 1950s and early 1960s, the Member States had probably assumed that it was a matter of international law regarding the type of enforcement action that could be taken against them. Nevertheless, disgruntled private individuals who felt disadvantaged by the problem of the implementation gap, brought cases before their municipal courts and argued that European law was a source of law for them. In the case of Van Gend en Loos C-26/62 {1963] ECR 1, the Court of Justice held that some provisions of the Treaty of Rome were capable of being enforced at municipal level. It said that: "The wording of Article 12 [now Article 30 TFEU] contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under Municipal Law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects. The implementation of Article 12 does not require any legislative intervention on the part of the states. The fact that under this Article it is the Member States who are made the subject of the negative obligation does not imply that their nationals cannot benefit from this obligation... It follows from the foregoing considerations that, according to the spirit, the general scheme and the wording of the Treaty, Article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect." Article 12 EEC Treaty [now Article 30 TFEU], on the abolition of customs duties, was held to confer rights on individuals who were involved in cross-border business. If Treaty Articles were sufficiently clear, precise and unconditional they can create effects in the legal relationship between individuals and their own municipal authorities. This is giving them "direct effect" that the municipal court can subsitute them instead of the different municipal rules. The conditions for direct effect, however, mean that it will only be in the circumstances where the
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legal text is actually clear, precise and unconditional, that a municipal court is able to give effect to those legal rights and obligations. The criteria for direct effect are the criteria for justiciability before a municipal court. If the wording of the rule is not clear, precise and unconditional, the municipal court cannot give legal effect to it. When it can do so, it is in effect involved in administering a system in which European law is being substituted for the inconsistent municipal rules. It follows therefore, that where more social and economic rights, etc, are created through a European law, then the greater the benefits through substitution that will arise. The Court's reasoning was characterized by a vision of the kind of legal order that the Treaty was designed to create. It pointed out that the Preamble to the Treaty mentioned citizens, and the fact that citizens also had a role to play through the European Parliament was treated as being significant. Providing individuals with a role in the enforcement of European law meant that it would become much more effective. Along with the establishment of the doctrine of direct effect, the establishment of the doctrine of supremacy of union law that was established by this case was an extraordinary piece of judicial activism, that was inspired by a teleological interpretation of the Treaty of Rome. The decision in the case of Van Gend en Loos, to give direct effect to Treaty provisions, means that EU law can penetrate into the municipal legal order, for the clear benefit of individuals. Following the approach taken in the jurisdiction of the Courts of Danzig case, was a major step in achieving European legal integration.

Primacy and Direct Effect of EU Law

In an area in which international and municipal legal rules overlap, the resolution of the Problem of conflict can also be looked at in terms of the question of the "primacy" of international law. Although dualist legal theory does not accept a doctrine of primacy of international law, a monist one does. Primacy is a highly important legal principle because it addresses any incompatibility issue that there is between municipal and international law. In the case of Costa v ENEL C-6/64, the Court of Justice said that: "The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail." This "primacy" principle in EU Law is also illustrated by the decision in Internationale Handelsgesellschaft C-11/70. In this case, the Court of Justice
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ruled that EU law takes precedence over all forms of municipal law, including municipal constitutional law. In the case of Simmenthal C-106/77, the Court of Justice said that: "A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means." The principle of the direct effect of Union law established in Ven Gen en Loos was a connected legal development in the early case law of the Court of Justice. It gave municipal courts another tool to deal with claims based on rights derived from EU law. It stood beside claims that were based on primacy, that would apply in situations where there was any difference between EU law and municipal law.

There are some important differences between the legal principles of primacy and of direct effect of Union law. The application of the principle of primacy of Union law, in cases such as Costa v ENEL and International Handelsgesellschaft, show how EU law produces legal effects in municipal law, quite independently of the principle of direct effect, and without reference to the criteria for direct effect i.e. the need for the relevant Union rule to be clear, precise and unconditional. The principle of primacy produces what can be described as "exclusionary" effects in municipal law. This means setting aside of that part of municipal law that is excluded through the primacy of the rules of Union law. The legal principle of direct effect involves what can be described as "substitution" effects. Substitution can be seen as the realisation of the justiciability of Union law, so as to create new rights or obligations from the Treaties, that did not exist in municipal law.

Vertical and Horizontal Rights

In the case of Van Gend en Loos, a Treaty article was being invoked that contained a specific negative obligation on the part of the Member States . The Treaty of Rome was a trade treaty, and there were various rules within it that were written in this "negative" way, that prevented Member States from deviating from the agreed approach to opening up the European trading system.

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Positive rules that involved municipal authorities taking positive steps, were not, in these early years, such obvious candidates for creating direct effects. The scope and nature of the positive action would have to be clearly identified and this would therefore lead to difficulty in giving such articles direct effect, because they would not be clear and precise enough, for example. The case of Defrenne v Sabena C-43/75 involved the question of the direct effect of Article 119 EEC Treaty (now 157 TFEU) regarding the principle of equal pay for men and women. Ms Defrenne, an air hostess, brought an action for sex discrimination against her employer, Sabena SA, on the ground that she suffered discrimination in pay when compared with male colleagues who were doing the same work as cabin stewards. It was clearly apparent that pay discrimination was taking place in the business. At this time it was also a fact that there was widespread pay inequality between men and women in Europe. The question of the direct effect of Article 119 was considered in the light of the nature of the principle of equal pay, the aim of this provision and its place in the scheme of the Treaty. Article 119 was not drafted in the same way as Article 12 in Van Gend en Loos, in that it did not specify a precise negative obligation, but rather it set out the principle of ensuring equal pay. The Court distinguished between direct and overt discrimination, which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the article in question, and, on the other hand, indirect and disguised discrimination which could only be identified by reference to the more explicit implementing provisions of a Community or national character. Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by Article 119 included those which have their origin in legislative provisions or in collective labour agreements, and which may be detected on the basis of a purely legal analysis of the situation. Since article 119 was mandatory in nature, the prohibition on discrimination between men and women applied to the action of public authorities, and, to all private agreements that were intended to regulate paid labour collectively, as well as to contracts between individuals. The inclusion of private agreements within the scope of direct effect, meant that new rights and obligations could be created between individuals. There was then a concern that the judgment would apply to pre existing cases of unequal pay, and there could be widespread economic consequences for employers. The Court of Justice held that the judgment would only be effective from that date.

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Secondary Measures
So far the discussion of the relationship between EU law and municipal law has only included the consideration of treaty articles. Union law consists of much more than that, of course. Secondary measures make up the bulk of the aquis communautaire. The varied forms that this can take are set out in Article 288 of the Treaty on the Functioning of the European Union.

Article 288 TFEU "To exercise the Unions competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force." Throughout the Treaties the areas of competence that the union is involved with details and often there are details of the kinds of secondary legislative measures that are appropriate in order to achieve them. Nevertheless, if then provisions are silent about it, then Article 296 can play its part:

Article 296 TFEU "Where the Treaties do not specify the type of act to be adopted, the institutions shall select it on a case-by-case basis, in compliance with the applicable procedures and with the principle of proportionality. Legal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties."

Regulations
Regulations
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Regulations are binding on all Member States. They are directly applicable. They must be published in the Official Journal and come into force on the date specified in the particular regulation or, if no such date is specified, on the twentieth day following publication : Article 297 TFEU. The Union adopts thousands of regulations to further its policies and they are very useful tools in influencing agricultural policy for example, by setting market prices and subsidies. They become part of municipal legal systems, without any need for any transformation or adoption by municipal legal measures. They are founded on a purely monist approach to international law.

Terms - Direct applicability A legal doctrine in which international law takes effect in the municipal legal system without the need for any implementing measures.

Directives
Directives Under Article 288, these legislative acts are binding as to the end to be achieved while leaving some choice as to form and method open to the Member States. The date of entry into force of directives is either the date specified in the directive or, in the absence of any such date, the twentieth day following their publication: Article 297(1) TFEU. The Union institutions generally have a choice whether to legislate by regulations or directives. There are, however, some Treaty articles which stipulate that directives must be used. For example, Article 153(2)(b) TFEU on social policy mandates the use of directives. Directives are a useful tool for the Union to use, when the aim is harmonisation of the laws within a certain area or to introduce some form of complex legislative change. This is because discretion is left to Member States as to how the directive is to be implemented. Implementation of the provisions of the directive by the Member states can be through public law or private law law reform, depending on the subject matter. The implementation of a directive may be problematic where the transposition does not correctly reflect the meaning of the directive.

Decisions
Decisions

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Decisions are binding in their entirety. Where those to whom they are addressed are stipulated, they are binding only on them : Article 288 TFEU. These may be Member States or natural or legal persons. Decisions serve to regulate actual circumstances between the different entities addressed in them. Like directives, decisions may include an obligation on a Member State to grant individual citizens a more favourable legal position. As with directives, an act of transposition on the part of the Member State concerned is required as a basis for claims by individuals. The classic example of a decision is in the context of competition policy or state aids, where the Commission expresses the formal conclusion of its inquiry in relation to a particular undertaking or Member State. There are Union decisions that do not fit into this stereotype and which do not have a specific addressee or addressees. The Decision setting the rules of procedure of the Consultation Forum of the Community Eco-Label Award Scheme, is one example of that.

Recommendations and Opinions

Article 288 states that recommendations and opinions have no binding force. They are a form of soft law that are used for giving guidance to states, institutions and individuals. As such, they are regularly used by the Commission in its competition policy work in advising companies and business groups.

The direct effect of secondary measures

Regulations
Under Article 288 TFEU these legislative acts are directly applicable. They have also been held to have direct effect: Orsolina Leonesio v Ministero dell'agricoltura e foreste C-93/71. In that case the facts involved the non payment of an EC managed subsidy for slaughtering milk cows. Two regulatons set out the conditions for subsidy payments, and the claimant considered that she had satisfied them. The Court of Justice said that, so as to apply with equal force with regard to nationals of all the Member States, regulations become part of the legal system applicable within the national territory, which must permit the direct effect provided for in Article 288 TFEU to operate in such a way that reliance on them by individuals may not be frustrated by domestic provisions or practices. It has also been held that regulations can be used by private parties as the basis for civil claims between them : Antonio Munoz Cia SA v Frumar Ltd C-253/00.

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Decisions
In the case of Franz Grad v Finanzamt Traunstein C-9-70 [1970] ECR 825, a haulage contractor challenged a German transport tax on the basis that it infringed a Decision addressed to the Member States on VAT and a Directive imposing a deadline for the implementation of the decision. The Court of Justice said that the wording of Article 288 TFEU did not exclude the possibility of a decision being able to create direct effects. It must be determined whether the nature, background and wording of the provision in question is capable of producing direct effects in the legal relationship between the addressee of the act and third parties.

Directives
In the case of Yvonne Van Duyn v Home Office C-41/74 [1974] ECR 1337, the Church of Scientology was a religious organisation set up in the USA, that operated in the UK through a college at East Grinstead, Sussex. The British Government regarded the activities of the Church of Scientology as contrary to public policy, and in July 1968, the Minister of Health announced that the Government was taking certain steps to curb its growth. One of those steps taken was refusal to issue work permits and employment vouchers to foreign nationals to work at Scientology establishments. Nevertheless, no legal restrictions were placed on the practice of Scientology in the UK, nor upon British nationals wishing to become members of or take employment with the Church of Scientology. Miss van Duyn, a Dutch national, was offered employment as a secretary with the Church of Scientology at its college at East Grinstead. With the intention of taking up that offer she arrived at Gatwick Airport in May 1973, but was refused leave to enter the United Kingdom. Relying on the Community rules on freedom of movement of workers and especially on Article 45 TFEU , Regulation 1612/68 and Article 3 of Directive 64/221 (now Directive 2004/38), Miss van Duyn claimed that the refusal of leave to enter was unlawful and sought a declaration from the High Court that she was entitled to stay in the UK for the purpose of employment, and to be given leave to enter the United Kingdom. Article 3 (1) of the Directive provided that 'measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned." After considering the wording of Article 288 TFEU the CoJEU held that it would be incompatible with the binding effect attributed to a directive by Article 288 to
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exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. By providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned, Article 3 (1) of Directive 64/221 was intended to limit the discretionary power which national laws generally confer on the authorities responsible for the entry and expulsion of foreign nationals and was capable of creating direct effects. The direct effect of directives that was established in the case of van Duyn shows that as between an individual and the state, there can be direct effects that are created at the municipal level. The implementation period that is given for a directive, and the choice of form and methods that is available to the member states makes it clear that it is not possible for individuals to ascertain their derived rights and obligations, until implementation has taken place. This has lead to frustration on the part of individuals, where they could possibly be deprived of rights through tardy implementation.

Conditions for direct effect

Following the decision in van Duyn it became necessary to determine the conditions in which the direct effect of directives would come into play. The case of Criminal proceedings against Tullio Ratti C-148/78 [1979] ECR 1629 involved a seller of chemical solvents being charged with a criminal offence of selling solvents without the correct warning labelling displayed on them. The Italian law on labelling that he was accused of breaking had not been amended to reflect the implementation of two Union directives on labelling. The seller had complied with the provisions of the directives, however. The implementation date for one of the directives had expired. The correct amendment of the Italian law would have resulted in the repeal of the provision of the Italian Law which the accused was charged with contravening and would have altered the conditions for applying the criminal sanctions contained in the law in question. Ratti tried to get protection from the provisions of the unimplemented directives, as a defence against the Italian law. The CoJEU said that the Member States had been placed under a duty to adopt a certain course of action in regards to the implementation of the directives. The effectiveness of a directive would be weakened if persons were prevented from relying on it in legal proceedings and if national courts were prevented from taking it into consideration as an element of Union law. As a result, a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails. A municipal court requested by a person who has complied with the
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provisions of a directive not to apply a municipal provision incompatible with the directive not incorporated into the internal legal order of a defaulting Member State, must uphold that request if the obligation in question is unconditional and sufficiently precise. In Ursula Becker v Finanzamt Mnster-Innenstadt C-8/81 [1982] ECR 53 the EU adopted a directive 77/338, concerning the harmonisation of Member States' laws concerning turnover taxes. Article 13 B of the Directive required Member States to exempt from VAT transactions involving "the granting and the negotiation of credit." The expiry date for enacting the implementing legislation was January 1, 1979. In Germany, the implementing legislation providing the exemption came into effect on January 1, 1980. Mrs. Becker, a self-employed credit negotiator claimed the exemptions on her tax returns as of January 1, 1979, the date by which the Member States were to have implemented the Directive. The Tax Office rejected these returns and assessed Mrs. Becker with the value added tax. On appeal, the Finanzamt considered that Germany had not implemented the Directive providing the exemption by January 1, 1979, and that Article 13 B could not be directly applicable. All of the Member States shared Germany's view with regard to the direct applicability of Article 13 B. The Finanzgericht referred the question regarding the direct applicability of Article 13 B of the Directive to the Court of Justice. The Court said that a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails. Accrdingly, wherever the provisions of a directive appear as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which the individuals are able to assert against the State. The Court held that Article 13 B was sufficiently precise in that it specified the exempt service. The Court also held that even if a directive, is not directly applicable in its entirety, an individual may rely on a provision of the directive as long as the provision is severable from the rest of the directive. The Court thought that to hold otherwise would allow Member States to annul even those effects which certain provisions of a directive are capable of producing. In the case of M.H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) (No 1) C-152/84 [1986] ECR 723, Ms Marshall was compulsorily retired by her employer, an Area Health Authority, in accordance with their retirement policy which applied an age of 60 in respect of female employees and 65 for male employees. She sought to rely on Directive 76/207, which had not been properly implemented by the UK, and which prohibited
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discrimination at work on grounds of sex. The Court of Justice rulesd that held that Miss Marshall was entitled to rely on the direct effect of the Directive against a Member State or an emanation of a Member State, such as the Area Health Authority. The Court of Justice said about the question of whether a directive can be relied upon as against an individual that: "[48]...it must be emphasised that according to Article 189 of the EEC Treaty [now Article 288 TFEU] the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to each Member State to which it is addressed. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person. It must therefore by examined whether, in this case, the respondent must be regarded as having acted as an individual. 49. In that respect it must be pointed out that where a person involved in legal proceedings is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether as employer or public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law." The case determined that a directive could not "of itself" confer rights to individuals at the municipal level. The court would give as wide an interpretation that it could to the meaning of the "state", however.

Emanations of the State

A directive does not have horizontal direct effect : Marshall (No. 1). However, while direct effect Allows for legal actions based on directives against the municipal authorities (vertical direct effect), the CoJEU did accept that the state could appear in a number of guises. it was prepared to consider that there could be such things as "emanations" of the state. In the case of Foster, A. and others v. British Gas plc, Case C-188/89, [1990] ECR I-3313 the CoJEU defined "emanation" of the state as being: "a body, whatever its legal form, which has been made responsible, 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 that which result from the normal rules applicable in relations between individuals. The government, local authorities, health authorities and the police are emanations of the state. An employer carrying out a public service which is in the control of the state (such as managing a prison or governing a school) may also be classed as an emanation of the state."

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In other words, the state can appear in a number of different emanations. Directives may confer directly enforceable rights not only on employees of the state, but also on employees of emanations of the state as well. This included employees of health authorities, as in the Marshall case, but also to employees of local government bodies : Fratelli Constanzo SpA v Commune di Milano C103/88 [1989] ECR 1839, and a police chief : Johnston v Chief Constable of the RUC C-222/84 [1986] ECR II-2863. The legal form of the emanation of the state not relevant, as long as it is responsible for providing a public service under the control of the state and has, for that purpose, special powers. This could include privatised industries or services, which formerly provided public services. Employees in these services can rely on provisions in EU directives. The wide scope of the definition of emanation of the state means a large proportion of the national workforce can directly enforce rights contained in EU directives. It can also lead to an imbalance between the enforcement of union law by individuals because different states make different political choices about the size of their public sector. This next case looks an attempt to use a directive in order to create rights and obligations between individuals. In Paola Faccini Dori v Recreb Srl C-91/92 [1994] ECR I-3325 a company called "Recreb" made a contract with Ms Dori at Milan Central Railway Station for an English language correspondence course. Some days later, by registered letter Miss Dori informed the company that she was cancelling her order, indicating, inter alia, that she relied on the right of cancellation provided for by Directive 85/577, concerning protection of the consumer in respect of contracts negotiated away from business premises. Recreb did not accept the cancelation notice and asked the Giudice Conciliatore di Firenze to order Miss Faccini Dori to pay it the agreed sum with interest and costs. The judge ordered Miss Faccini Dori to pay the sums in question, to which order she lodged an objection with the same judge. The judge stayed the proceedings to receive the answer from the CoJ on whether it could apply the directive in question. At time Italy had not taken any steps to transpose the directive into national law, although the period set for its transposition had expired. The court said that to give a directive the power to create legal rights and obligations between individuals would be to give the EU a power to enact obligations for individuals with immediate effect, when, in fact, it only has power to do so by regulations. so as far as directives are concerned, when there have not been any transposing measures by the member state, then, even after the implementation date has passed, consumers cannot derive rights from them.

Primacy and Directives

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Previously, we have looked at the way that international law can take effect at municipal level. This is through the monist and the dualist approaches towards international law. The application of the technique of direct effect is very useful for individuals at municipal level where the wording of the international law is clear, precise and unconditional. It can be asserted that there is primacy of international law even where the wording is not sufficiently clear, precise and unconditional to create direct effects. In many cases, the Court of Justice has had to deal with questions concerning primacy that were brought by individuals. The circumstances were that the wording of the directives did not have the clarity or precision to confer direct effects. The doctrine of direct effect could not extend the power of directives to create rights and obligations on individuals. Another approach would need to be taken.

Purposive Interpretation and Directives

The other approach towards individual enforcement of union law comes from the principle of the rule of law, Article 4(3) of the TEU, and the principle of "effet utile". The application of this technique led to the purposive interpretation of
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municipal law This is the interpretation of municipal law in the light of the meaning and purpose of Union law. The case of Sabine von Colson and Elisabeth Kamann v Land NordrheinWestfalen C-14/83 [1984] ECR 1891 involved legal proceedings between two female qualified social workers and the Land Nordrhein-Westfalen in Germany. Sabine von Colson and Elizabeth Kamann had applied for work at Werl Prison. The prison catered exclusively for male prisoners. Their applications were unsuccessful and the officials involved cited their sex as being the reason for the refusal to employ them. The officials claimed that there were particular problems and risks associated with employing female candidates in an all-male prison. In the event male candidates, who were less well qualified, were given the posts. In the subsequent legal proceedings, the Labour court held that there was discrimination, but took the view that the only compensation for discrimination available in municipal law, was to the extent that it would cover their travel expenses. Directive 76/207, on equal treatment, Article 6, required member states to introduce into their legal systems such measures as were necessary to enable all persons who considered themselves wronged by discrimination to pursue their claims by judicial process. An argument could be made that this required the women to be offered the posts as the remedy for the sex discrimination they had been subject to. The Directive did not lay down a system of remedies for breach of the equal treatment rules. The Court of Justice did not specify any particular kind of remedy but stated that it needed to be "effective" in order to fulfil the objective of the Directive. Additionally, it must be sufficient to act as a real deterrent to the employer. Para 26 "...the Member States obligation arising from a Directive to achieve the result envisaged by the Directive and their duty under Article 5 of the Treaty [now Art 4(3) TEU] to take all appropriate measures, whether general or particular, to ensure the fulfillment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the Municipal law and in particular the provisions of a Municipal law specifically introduced in order to implement Directive No. 76/207, national courts are required to interpret their Municipal 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 [now Art 288 TFEU]." The municipal law on equal treatment should have properly transposed the Directives requirements. However, given that the requirements regarding remedies were not spelled out, it was national courts that had to decide which were appropriate in the context of their own legal system.
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The Court developed a method by which individuals could derive their rights in the absence of direct effect and ensured that the principle of effective judicial protection. The Court wished to see the legitimate expectations of the individual seeking to have purely municipal Law applied, and, in addition, to ensure the widest enforcement possible of Union law, along with the protection of the rights of individuals originating in Union law. An important principle is 'effet utile'. This is an interpretative principle that is derived from international law and has, in Union law, been defined as requiring the Court of Justice to interpret legal rules reasonably, so as not to fail in their aim or objective. It plays a fundamental role in the development of the principle of effective judicial protection and in defining its characteristics. The principle is implicit in Von Colson' case, where the Court imposed on the national courts a duty to secure the full effect of a Directive. We have seen the limitation in the ability of directives in creating obligations between private individuals in the case of Marshall (No.1) Under the doctrine of direct effect, as stated in the Marshall judgment, the Court of Justice said that "...a Directive may not of itself impose obligations on an individual and that a provision of a Directive may not be relied upon as such against such a person." In Marleasing v La Commercial Internacional de Alimentacion C-106/89, a question of the effect of Union Directive arose in a Spanish private law dispute between Marleasing SA, the claimant in the main proceedings, and a number of defendants including La Comercial Internacional de Alimentacin SA. The dispute raised an important issue about the effects of a Union Directive on inconsistent municipal law. Marleasing' s main claim was based on various articles of the Spanish Civil Code, which said that contracts without cause or whose cause is unlawful have no legal effect, and so there should be a declaration that the founders' contract establishing La Comercial was void on the ground that the establishment of the company lacked cause. The establishment of La Comercial was a sham transaction, and was carried out in order to defraud the creditors of Barviesa SA, a co-founder of the defendant company. The existing Spanish law should not have been in place because it should have been changed to reflect the Community Directive through the accession of Spain to the Community. The Court of Justice held that the requirement that municipal law must be interpreted in conformity with Article 11 of Directive 68/151 precludes the interpretation of provisions of municipal law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those exhaustively listed in Article 11. So the Directive, it held, did not provide lack of cause as a ground for a declaration of nullity. The Marleasing decision holds that the requirement of interpretation of municipal law in conformity with Directives precludes the interpretation of
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provisions of municipal law in a particular way incompatible with the relevant Directive. The national court is required to interpret municipal law as far as possible, in the light of the wording and the purpose of the Directive. This obligation applies where there is no national implementing legislation. The decision in Marleasing has been criticized for producing a kind of de facto horizontal direct effect. The court prescribed the interpretative result to which the national court was to give effect. The outcome of the ruling is to allow individuals to rely on Directives in actions against other individuals, which is contrary to the Court's interpretation of Article 288 as laid down in the case of Marshall(No.1). However, in a formal sense at least the defendant was gaining legal protection from the Directive indirectly through municipal law and not directly from Union law as would be the case if it had horizontal direct effect. An individual is able to rely on a Directive to protect his Union rights, but without imposing any corresponding obligations upon the other party. In Marleasing, by invoking the Directive as a 'shield', the defendant company did not impose an obligation on the other party in the sense referred to by the Court in Marshall (No.1). The only obligation to be imposed on the claimant would be his duty, as a third party, to respect such Union rights. Marleasing was also controversial because of the possible issues that could arise when preceding national laws could be interpreted in the light of the wording and purpose of the Directive. If private parties could be affected by an unimplemented Directive how would this affect their legal arrangements in future? The municipal court will have to do what it can to interpret municipal, law but it may not be in a position to interpret municipal law in such a way as to comply with the Directive in question. As a result, the duty of purposive interpretation is not absolute and cannot give national courts a legislative function to allow them to re-write municipal law. The principle of purposive interpretation affects all member states national methods of statutory interpretation. It applies whether or not the municipal law on the subject matter of the dispute is clear or not. A Directive was used in an action between two private parties as a 'sword' in the case of Carole Louise Webb v EMO Air Cargo (UK) Ltd Case C-32/93 [1994] ECR I-3567. One of the four employees working in the import operations department of EMO Air Cargo, Mrs Stewart, found that she was pregnant. Her employer, EMO Air Cargo, decided not to wait until her departure on maternity leave before engaging a replacement. Mrs Webb was recruited with a view, initially, to replacing Mrs Stewart following a probationary period. However, Mrs Webb was confirmed as being pregnant a week later. Shortly afterwards, she received a letter dismissing her: "You will recall that at your interview some four weeks ago you were told that the job for which you applied and were given had become available because of one of our employees becoming pregnant. Since you have
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only now told me that you are also pregnant I have no alternative other than to terminate your employment with our company." Mrs Webb then brought proceedings before the Industrial Tribunal, pleading direct discrimination on grounds of sex and, in the alternative, indirect discrimination. The Industrial Tribunal decided in favour of the employer. She then appealed unsuccessfully to the Employment Appeal Tribunal, and to the Court of Appeal which led her to make a final appeal to the House of Lords. The relevant national legislation was the Sex Discrimination Act 1975 which prohibited discrimination The House of Lords found that the special feature of this case lay in the fact that the pregnant woman who was dismissed had been recruited precisely in order to replace, at least initially, an employee who was herself due to take maternity leave. The House of Lords then referred to the Court of Justice for a preliminary ruling a question on the interpretation of Council Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Article 2(1) of the Directive provided that "the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status". Article 5(1) that "application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex". The Court of Justice held that there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy, of performing the task for which she was recruited with that of a man that was somehow similarly incapable for medical or other reasons. Pregnancy was not comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex. The protection afforded by Union law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the Directive. This ruling led to the imposition of a positive obligation on employers to comply with a new, "european", principle of equal treatment and not to dismiss an employee, on an indefinite contract of service, on the grounds of pregnancy when she was a replacement for another employee who was on maternity leave. The case shows a Directive that is being has been used as the basis for an action against another private party, (EMO), the action subject to general principles of law.

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In Ocano Grupo Editorial SA and Roco Murciano Quintero C-240/98 the defendants in the cases, Spanish residents, had entered into contracts for the purchase by installments of encyclopaedias. The claimants were the sellers of these encyclopaedias. The defendant purchasers did not pay the sums due, and the sellers brought actions ('juicio de cognicin - a summary procedure available only for actions involving limited amounts of money) for these amounts. The Court of First Instance in Barcelona, Spain, referred to the Court of Justice for a preliminary ruling on the interpretation of Council Directive 93/13 on unfair terms in consumer contracts. The purpose of that Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts. Importantly, the contracts contained a term conferring jurisdiction on the courts in Barcelona, where the claimants had their principal place of business but where none of the defendants were residing. This clause was considered by the national court hearing the dispute as an unfair one. It asked for an interpretation of the Directive in this context. The Court of Justice interpreted the wording of the Directive and held that the protection provided for consumers by the Directive entails the national court being able to determine of its own motion whether a contract term is unfair when making its preliminary assessment as to whether a claim should be allowed to proceed before the national courts. It also said that : "It is apparent from the above considerations that the national court is obliged, when it applies national law provisions predating or postdating the said Directive, to interpret those provisions, so far as possible, in the light of the wording and purpose of the Directive..." Importantly, this decision gives municipal courts a role to play in deciding whether rights in private law should be enforceable or not of their own motion. The outcome of the case is that a national court can refuse to recogise a claim that is based on an unfair term. In the case of Centrosteel Srl v Adipol GmbH Case C-456/98, Centrosteel Srl was a company established in Brescia (Italy), and Adipol GmbH, a company whose principal place of business was in Vienna (Austria). For a number of years Centrosteel acted as commercial agent on behalf of Adipol under an agency contract between them. After the contract had been terminated, Centrosteel claimed payment of certain sums by way of commission. When Adipol refused to pay, proceedings were brought in the Italian courts. The defendant contended that the agency contract in question was void because Centrosteel was not entered in the register of commercial agents and representatives that was a compulsory requirement under Italian Law.
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The Italian court made a request for a preliminary ruling regarding the interpretation of Union law in relation to the registration of commercial agents. The Court of Justice interpreted Directive 86/653 that coordinated the laws of the Member States relating to self-employed commercial agents. The Directive was intended to harmonise Member States laws governing the legal relationship between the parties to a commercial agency contract. The Court of Justice held that the municipal court is bound, when applying provisions of municipal law either predating or postdating thed Directive, to interpret those provisions, so far as possible, in the light of the wording and purpose of the Directive, so that those provisions are applied in a manner consistent with the result pursued by the Directive. The implications of the ruling were that, on the one hand Adipol would be under a legal obligation to pay the amount due under the contract with Centrosteel. If Italian law were not read in the light of the Directive, and on the other hand, if the agency contract were rendered void for violation of Italian registration law, Adipol would not have been under this obligation. It is noteworthy that the similarity between the outcome this case and that of giving directives horizontal direct effect is very close indeed. The Directive made provision for commercial agencies that was, in effect, relied on by Centrosteel. In Pfeiffer and others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (Joined cases C-397/01 to C-403/01) a Mr Pfeiffer was employed by the Deutsches Rotes Kreuz as an emergency worker. The respondent operated the regional land-based emergency service, carrying out emergency rescues by ambulances and emergency medical vehicles. The dispute in the case was about whether, in calculating the period of maximum weekly working time, account should be taken of periods of "duty time", which the workers had been required to do in the course of their employment. The Court of Justice gave preliminary rulings in respect of a number of questions regarding the construction and application of Directive 93/104 (concerning certain aspects of the organisation of working time) and Directive 89/391 (on the introduction of measures to encourage improvements in the safety and health of workers at work). Article 6(2) of Directive 93/104 provides that Member States must take the measures necessary to ensure, for health and safety reasons, that the average working time for each 7-day period, including overtime, does not exceed 48 hours. Mr Pfeiffer and others claimed that the provision made by the respondent to set their weekly working time at 49 hours was unlawful. The Court of Justice held Article 6(2) to be directly effective. Nevertheless, as it could not be give effect in the dispute between individuals, the doctrine of indirect effect would apply. The provisions of the Directive had to be interpreted
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as preventing legislation in a member state having the effect of which, as regards periods of duty time completed by emergency workers in the framework of the emergency medical service of a body such as the respondent, was to allow, including by means of a collective agreement or works agreement based on such an agreement, the 48-hour maximum to be exceeded. Although the principle that municipal law must be interpreted in conformity with Union law concerns chiefly domestic provisions enacted in order to implement the Directive in question, it does not entail an interpretation only of those provisions but requires the national court to consider municipal law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the Directive. This decision goes further than that of the earlier case of Marleasing, because it requires municipal courts to consider municipal law as a whole and not only a single piece of legislation that is relevant. It also highlights the conceptual and practical problems of accommodating EU norms by national legal systems.

Purposive Interpretation and Criminal Liability

The doctrine of consistent interpretation is a powerful mechanism for ensuring that Union law can be enforced in municipal legal systems. In the situation where there is criminal law as a penalty for breaching obligations that may be incurred by private individuals, the consequences of indirect effect could be significant. We have to bear in mind that the municipal law will not reflect the obligations that are found in the Directive. Therefore, any consistent interpretation will potentially result in an individual being disadvantaged. In the case of Criminal proceedings against Kolpinghuis Nijmegen BV C-80/86 [1987] ECR 3969, criminal proceedings were brought against a caf in Nijmegen in Holland that sold water, described as "mineral water", but which was actually tap water with carbon dioxide added to it. The business was charged with infringing the relevant food inspection regulation prohibiting the sale of goods for trade and human consumption of unsound composition. A Directive on the classification of mineral water had also been passed by the Union, but at the time of the case it had not yet been implemented into Dutch law. This was Directive 80/777 on the exploitation and marketing of mineral waters. The effect of the Directive on the prosecution was unclear without its implementation fully in place in municipal law. The Court of Justice held that the national authorities could not rely on the provisions of the Directive against an individual because of the earlier decisions in Becker C-8/81 and Marshall C152/84 that a Directive could not be relied on as against a private individual.

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It also held that the interpretative duty of a national court to give effect to the wording and purpose of the Directive meant that they had to consider the general principles of Union law regarding legal certainty and non retroactivity. In particular, the court said that a Directive cannot, by itself and independently of municipal law, either determine or aggravate an individuals criminal liability for acting in contravention of the Directive. The use of a Directive against an individual in the way that was attempted by the authorities in the case is called "inverse" vertical effect. It can be compared with the vertical effect of directives that is found in the established doctrine of direct effect for directives. The decision to reject the possibility of inverse vertical effect is reasonable in the context of the directive being unable to create direct effects against private parties. The reasoning for the inability to create indirect effects based on legal certainty and non retroactivity is also reasonable in a criminal context. It would be unfair for individuals to have a criminal liability established or increased where there was no similar municipal law on the matter. Another important case on the relationship between municipal criminal law and the purposive interpretation of Union law is that of Criminal proceedings against Luciano Arcaro Case C-168/95. Here, the Italian authorities were seeking to impose an obligation on an individual on the basis of a Directive that it had not implemented correctly into municipal law, and which did not produce direct effects. Questions were raised in criminal proceedings brought against a Mr Luciano Arcaro under an Italian Legislative Decree of 1992 on industrial discharge of dangerous substances into water. Mr Arcaro, the legal representative of a metal working business, was prosecuted under various Articles of the Decree for discharging cadmium into the surface waters of the River Bacchiglione without any authorisation to do so. The Italian court had referred questions on the interpretation of Directive 76/464 on dangerous substances in waters and Directive 83/513 on limit values and quality objectives for cadmium discharges and their relationship to the law on water pollution. The national Legislative Decree was adopted in order to implement a number of Community directives on discharges containing dangerous substances, including Directives 76/464 and 83/513. The Decree distinguished between new plant and existing plant and for older plant made no requirement for authorisation for discharges. The Pretore expressed its doubts about the conformity of those provisions with the Union directives which they implemented and which, according to the Pretore, require authorization for all discharges which are subject to them, without any distinction between new plant and existing plant. After considering the wording of the two Directives the Court of Justice decided that any discharge of cadmium is subject to the issue of prior authorization,
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without any exceptions for older industrial plants. Given that the Italian law was not in conformity with the Directives, the matter of what the law should be had to be decided. Relying on the treaty requirement of loyal cooperation in Article 5 EC (now 4(3) TEU). The national court was directed to interpret that law, as far as possible, in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive and thereby comply with the third paragraph of Article 189 (now 288 TFEU) of the Treaty. It said that: "42 That obligation of the national court to refer to the content of the Directive when interpreting the relevant rules of its own Municipal Law reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a Directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the Directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that Directive' s provisions..." The case was a direction to national courts as to how to deal with inconsistent national implementing measures and a warning against determining or aggravating an individuals criminal liability when doing so. It is clear that the non implementation or incorrect implementation to a Directive will have a important influence on the outcome of a case involving criminal liabilty in respect of individuals. The doctrine of purposive interpretation in relation to criminal proceedings was extended beyond directives to include Framework decisions that were made outside the EC pillar of the pre-Lisbon Treaty arrangements. These arrangements now form part of the EU's policy under the Area of Freedom, Security and Justice. In Criminal proceedings against Pupino C-105/03, it was alleged that Mrs Pupino it was alleged that in January and February 2001, she committed several offences of 'misuse of disciplinary measures' within the meaning the Italian Criminal Code against a number of her pupils aged under five years old at the time, by such acts as regularly striking them, threatening to give them tranquillisers and to put sticking plasters over their mouths, and forbidding them from going to the toilet. Under Italian criminal procedure witnesses must usually depose orally at trial, but in certain circumstances their evidence may be taken before a judge ahead of trial. The public prosecutor asked the court to allow the evidence of the little children to be taken in this way, but the court refused. In 2001, the Council issued a Framework Decision 2001/220 JHA, [2001] O.J. L82/1 setting out a list of guarantees that Member States undertake to provide for the victims of criminal acts. Under its Article 3, "Each member state shall take appropriate measures to ensure that its authorities question victims only in so far as necessary for the purpose of criminal proceedings."
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Under Article 8 (4), "Each Member State shall ensure that, where there is a need to protect victims - particularly those most vulnerable - from the effects of giving evidence in open court, victims may, by decision taken by the court, be entitled to testify in a manner which will enable this objective to be achieved, by any appropriate means compatible with its basic legal principles". The Italian Code of Criminal Procedure set out the circumstances in which this kind of evidence kind of evidence can be given before a judge ahead of trial, but this was not one of them. The refusal of the judge in the Pupino case to allow the children's evidence to be taken in advance of trial led to the a consideration of the compatibility of the relevant provisions of the Italian Code of Criminal Procedure with the Framework Decision, and to the judge invoking Article 35 of the TEU to refer the question to the CoJEU at Luxembourg. The Court of Justice considered that the binding character of framework decisions, formulated in terms identical to those of the third paragraph of art 288 TFEU with regard to directives, places on national authorities, and particularly national courts, an obligation to interpret municipal law in conformity with Community law. The court concluded that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its municipal law is limited by general principles of law, particularly those of legal certainty and nonretroactivity. Those principles prevent that obligation from leading to the criminal liability of persons who contravene the provisions of a framework decision from being determined or aggravated on the basis of such a decision alone, independently of an implementing law (see for example, in relation to Community directives. The extension of purposive interpretation to as wide an area of EU law as possible illustrates that the Court of Justice takes every opportunity that it can to make EU law as effective as possible. This is its policy.

Special Situations
Triangular Situations
In this kind of situation an individual can be affected by an action for direct effect between two other people. The outsider to the action forms the point of a socalled "triangle", that has the other two active parties in it.

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In the case of The Queen, on the application of Delena Wells v Secretary Of State for Transport, Local Government and the Regions C-201/02 [2004] ECR I-723, the applicant, who owned a house near to a quarry, contested the grant to the quarry of a new permit for mining operations. The dispute was between Ms Wells and the Secretary of State, who had granted the mining permit. She argued that the grant of the permit was in breach of the provisions of a directive on environmental impact assessment, Directive 85/337, designed to provide information about the future impact of mining on the environment. The successful judicial review action led to the withdrawal of the mining permit. As a result the quarry owner was unable begin mining. Ultimately then, the mine owner lost out because it was not possible to begin mining. There was no action in law between Ms Wells and the mine owner. Relying on the direct effect of a directive by an individual against the state had a negative consequence on the mine owner, who was not a party to the proceedings in which the municipal court decided on the issue of direct effect.

Incidental effects
In the case law on purposive interpretation, we have seen how the Court of Justice has directed municipal courts towards their interpretation of municipal law. The primacy of Union law has been an important influence, with municipal law being interpreted in the light of the wording and purpose of the Directive. The purpose of the Directive is thereby made as effective as possible. Individuals can go before national courts, who will then have to consider what the outcome of the difference between municipal law and Union law will be. The purposive interpretation has come to the point where individuals will be seeing effects in their legal relationships between one another through the primacy of Union law. This also is in the apparently contradictory context of decisions that say that Directives cannot have horizontal direct effect between individuals. One of the most controversial aspects of the approach of the Court of Justice towards promoting its policy of effectivess, has been the in its "incidental effects" case law. This is illustrated by the two cases of CIA Security and Unilever. In the case of CIA Security International SA v Signalson SA and Securitel SPRL C-194/94 [1996] ECR I-2201, the companies involved in the main proceedings were business competitors, who manufactured and sold alarm systems in Belgium. CIA Security claimed that Signalson and Securitel had libelled it by claiming that one of their alarm systems did not fulfil the requirements laid down by Belgian law. There were two relevant Belgian laws that it was claimed that CIA Security was in breach of : a 1990 Law and a Decree of 1991. Both were concerned with the technical aspects of the alarm systems. The 1990 Law provided that the alarm systems may be marketed only after prior approval has been granted under
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a procedure to be laid down by royal decree. The procedure was set out in a Decree in 1991. The municipal court considered that if CIA Security had infringed the 1990 Law and the 1991 Decree, the actions which it had brought could be declared inadmissible for lack of standing or sufficient legal interest in bringing proceedings, while if the 1990 Law and the 1991 Decree were incompatible with Community law, Signalson and Securitel will not be able to base their counterclaims for restraining orders on breach of those legal provisions. The relevant Community law was Directive 83/189, on laying down a procedure for the provision of information in the field of technical standards and regulations. In a preliminary ruling from the National court in Lige, the Court of Justice considered that this Directive was designed to protect, by means of preventive control, freedom of movement for goods, which is one of the foundations of the Community. All draft technical regulations covered by the Directive must be notified and, except in exceptional cases their adoption or entry into force must be suspended during the periods laid down by its Article 9. The notification and the period of suspension afford the Commission and the other Member States a chance to examine whether the draft regulations created obstacles to trade contrary to the EC Treaty. Importantly, in the case here, the 1991 Decree was not notified to the Commission in accordance with the procedure for the provision of information on such technical regulations laid down in Directive 83/189. The court held that articles 8 and 9 of Directive 83/189 laid down a precise obligation on Member States to notify draft technical regulations to the Commission before they are adopted. Being unconditional and sufficiently precise in terms of their content, those articles may be relied on by individuals before national courts. The wording of Articles 8 and 9 of Directive 83/189 is clear in that those articles provide for a procedure for Community control of draft national regulations and the date of their entry into force is made subject to the Commission' s agreement or lack of opposition. The provisions contained in the 1991 Decree do constitute technical regulations that should have been notified. The effect of this non compliance with a Directive would have a bearing on the outcome of the dispute between the companies. Was its wording unconditional and sufficiently precise for individuals to be able to rely on them before a national court, which must then decline to apply a national technical regulation which has not been notified in accordance with it? The Court of Justice thought so. It held that Directive 83/189 is to be interpreted as meaning that breach of the obligation to notify renders the technical regulations concerned inapplicable, so that they are unenforceable against individuals. Individuals may rely on them before the national court which must decline to apply a national technical regulation which has not been notified in accordance with the Directive.
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The case is an example of the "incidental effect" of Directives. As we have seen a Directive of itself may not create rights in an action between individuals. Here the Directive was to be complied with by the member states and the Commission too. It said nothing about any rights that could be conferred on individuals. The situation in the case of a failure to comply with the notification obligation was a substantial procedural defect that had an effect on the legality of the national legislation. In the event that proceedings took place between individuals the non compliance with the Directive would have a bearing on the national courts view of their own legislation. The Member States that were represented in the proceedings did not share the view taken by the Court of Justice. The German, Dutch and the United Kingdom governments all said that national technical regulations within the meaning of Directive 83/189 should be enforceable against individuals, even if they were adopted in breach of the directives obligations. The Court of Justice was concerned to see that the Directive is made as effective as possible and so interpreted it in that way in order to achieve the desired result. In the case of Unilever Italia SpA and Central Food SpA -443/98, an Italian Magistrate in Milan referred a question on the interpretation of Council Directive 83/189 (the same Directive as the one dealt with in the CIA Security case), to the Court of Justice for a preliminary ruling. The question was raised in proceedings between Unilever Italia SpA and Central Food SpA, concerning payment by Central Food for a consignment of olive oil supplied to it by Unilever. As we have seen, Directive 83/189 provides for the notification of technical regulations relating to product standards, so that the Commission can ensure that they do not act as a barrier to the free movement of goods. A period of time is required so that the draft regulations can be checked. A draft law to govern labelling indicating the geographical origin of the various kinds of olive oil was submitted to the Italian Parliament on 27 January 1998. This was then made subject to checking by the Commission, leading the Commission to put forward legislation of its own regarding the labelling of olive oil. In the meanwhile the Italian government passed its legislation. The Olive oil supplied by Unilever did not comply with the Italian law, and Central Food SpA refused to pay for it because it did not do so. Unilever began proceedings before the Italian Magistrates for an order requiring Central Food to pay a sum corresponding to the price of the consignment. The Pretore referred the question of the effect of the non compliance with the Municipal Law as being the basis for the court to ignore it, and thereby effectively assist the claim in private law by Unilever. In the earlier case of CIA Security, the Court had found that the effectiveness of the Directive would be at its best if it were interpreted as meaning that breach of
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the obligation to notify constituted a substantial procedural defect such as to render the technical regulations in question inapplicable to individuals: " it follows from the case-law of the Court that the inapplicability of a technical regulation which has not been notified in accordance with Article 8 of Directive 83/189 can be invoked in proceedings between individuals for the reasons set out in paragraphs 40 to 43 of this judgment. The same applies to non-compliance with the obligations laid down by Article 9 of the same Directive, and there is no reason, in that connection, to treat disputes between individuals relating to unfair competition, as in the CIA Security case, differently from disputes between individuals concerning contractual rights and obligations, as in the main proceedings." Directive 83/189 does not in any way define the substantive scope of the legal rule on the basis of which the national court must decide the case before it. It creates neither rights nor obligations for individuals. A national court is required, in civil proceedings between individuals concerning contractual rights and obligations, to refuse to apply a national technical regulation which was adopted during a period of postponement of adoption prescribed in Article 9 of Directive 83/189. There is evidence from these cases and of the cases before of an apparent concession by the Court of Justice to subsume primacy within the general duty of interpretation placed upon national courts. This duty to be applied with a disciplined discretion by them. The outcome has been to establish a judicial balancing act at national level, that maximises the effectiveness of Union law but within the limits represented by legal certainty, non-retroactivity, noncriminalisation and so on, as general principles of EU law.

During the implementation period

In the case of Ratti, it had been that direct effects could only be created within the legal orders of the Member States after the implementation date for a Directive had expired. In the period between the adoption of the Directive and its implementation date, however, there are negative obligations that will still apply. In the case of Inter-Environnment Wallonnie v Region Wallone C-129/96 [1997] ECR I-7411 it was held that during the implementation period Member States must refrain from taking any measures liable to seriously compromise the result prescribed by the Directive. Going beyond this, Directives can prescribe positive reporting obligations on municipal authorities detail how they are progressing the implementation. In the case where an unimplemented Directive is broken then as a result of the primacy of Union law, it could be argued by an individual that the "soon to be replaced" national law could not be applied to them, even in an action between

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them and another individual. An example of this argument was raised in the case of Mangold v Helm C-144/04.

General Principles of EU Law and Directives

In Mangold v Helm C-144/04 [2005] ECR I-9981, in 2003 Mr Mangold, a German national aged 56, entered into an employment contract with Mr Helm, a lawyer practising in Germany. The employment was to be for a six month period. This was in accordance with a special provision of German law which had been enacted with a view to enabling the employment of employees older than 52, and which specifically provided for six-month fixed-term contracts. This was a clearly age discriminatory rule. A few weeks after starting his employment, Mr Mangold brought proceedings against his employer before a German Labour Court claiming that the municipal law was contrary to Directives 1999/70 (which gives effect to the framework agreement on fixed-term work) and Directive 2000/78 (which establishes a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment). One of the key problems with Mr. Mangold's claim was that the employment contract took place before expiry of the deadline for transposition of the Framework Equality Directive. He was seeking to rely on the provisions of a directive in horizontal litigation with regard to facts that pre-dated the expiry of the implementation deadline of the directive. The CoJEU circumvented the difficulties resulting from directives and their arguably unclear legal authority during the implementation period and said that Member States must refrain from taking any measures liable to seriously compromise the attainment of the result prescribed in the Directive. In stressing the national court's responsibility for ensuring the full effectiveness of the general principle of non discrimination, the CoJEU emphasized that the national court hearing a dispute involving the principle of non-discrimination in respect of age would have "to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of [Union] law and to ensure that those rules are fully effective." The case of Seda Kckdeveci v Swedex GmbH & Co. KG C-555/07, is a highly important case regarding the issue of the enforceability of Directives between private parties at municipal level. It has been called "Mangold II" by some commentators. The case concerned the calculation of the length of service of a

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Turkish worker in an EU Member State for the purposes of protection against dismissal. German law provided that employment taken before the age of 25 would be ignored for the purposes of calculating a redundancy payment. The employee here, a Ms Kckdeveci was a young worker who was made redundant by her employer. She had been employed from the age of 18 by a German company called Swedex. In 2006, ten years after she started work for them, Swedex dismissed her. She was only entitled to 3 years redundancy under the German law. Article 1 of Directive 2000/78 provides that its purpose is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment. The German law was clearly incompatible with the requirements of Directive 2000/78, the transposition period for which had passed before the applicant's dismissal. However, as the respondant in the case was a private party, the general prohibition on allowing untransposed Directives to be relied upon against a private party would ordinarily have hindered Ms Kckdeveci's case. Noting that the national provision at issue was clear and could not be interpreted in the light of the wording of the directive, the national court made a request for a preliminary ruling which asked the Court of Justice whether the municipal law infringed the Union law prohibition of discrimination on grounds of age, in particular primary Union law or Directive 2000/78? The Court of Justice held that the principle of non-discrimination on grounds of age was a general principle of EU law which was given "specific expression" in the Directive.The general principles of Union law hold a particular place in the CoJEU jurisprudence, covering the gaps in the law and interpreting the provisions of the Treaty. The Court also made reference to Article 6(1) TEU which provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the Charter, '[a]ny discrimination based on ... age ... shall be prohibited'. "It follows that it is the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78, which must be the basis of the examination of whether European Union law precludes national legislation such as that at issue in the main proceedings. " [para 27]. The Court concluded that the principle, as given expression by the Directive, precluded the German national legislation.

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Unimplemented directives may therefore be enforced against private parties where they constitute the expression of a general principle of EU law. The Kckdeveci case establishes that direct effect needs to give way to primacy, which thus becomes the foundation of European Union law. The criterion for application of a legal norm is thus not its substance nor its ability to confer rights in a direct and precise manner. In Mangold, the CoJEU had enhanced the effect on private parties of the general principle of equality and the Directive laying down the relevant legal framework. The case was, however, so controversial that observers were unsure as whether the Court would confirm its approach in later cases.' The ruling in Kckdeveci confirms and clarifies this aspect of the Mangold judgment. When an applicant relies on the general principle of non-discrimination on grounds of age, as given expression by the Framework Equality Directive, the national court must not apply any contrary national legislation. This applies regardless of the fact that the defendant is also a private party and that his situation is adversely affected. It is therefore clear that private parties can rely on the general principle of equality, as given expression in the Framework Equality Directive, in order to set aside conflicting domestic rules in horizontal litigation. Case C-101/08 Audiolux SA and Others v Groupe Bruxelles Lambert SA (GBL) and Others and Bertelsmann AG and Others This case involved the acquisition of shares in a company and the effect of this on the minority shareholders. It was a dispute, therefore between private parties. In Luxembourg the RTL Group was a public limited company whose shares were traded on various European stock exchanges. Initially, the shares of RTL were held in this way: GBL had a 30 percent stake, Bertelsmann Westdeutsche TV GmbH held 37 percent, Pearson Television held 22 percent and the minority shareholders, Audiolux and others held 11 percent. During the first half of 2001, GBL transferred its holding of 30 percent of the capital of RTL to Bertelsmann in exchange for 25 percent of the capital of Bertelsmann. In December 2001, Bertelsmann also acquired the shares of RTL held by Pearson Television thereby acquiring a majority control of RTL Group. The transfer of GBL's shares to Bertelsmann was the subject of proceedings brought by Audiolux, against GBL, Bertelsmann and the RTL Group and against other directors of the RTL Group for the annulment of the agreements concluded between GBL and Bertelsmann. Audiolux claimed compensation for loss, caused by a failure to comply with an alleged obligation to offer them the opportunity to exchange their shares in RTL for shares in Bertelsmann, under the same conditions as those agreed with GBL. A preliminary ruling was requested by the Court of Cassation of Luxembourg. The Court of Justice had to consider whether or not there is a general principle of Union law for the equality of shareholders. If so, did that principle protect a company's minority shareholders so that in the event of an acquisition of control
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of the company, the minority were entitled to dispose of their shares on conditions identical to those applying to the other shareholders? Union law in this field was found in three directives, a Commission recommendation and a code of conduct. These rules did not specifically regulate the position of the buying out of minority shareholders in situations like this. In interpreting these rules the Court of Justice emphasised that the fact that there was provision for protection of shareholders in other circumstances was not sufficient to establish a general principle of Union law in the present circumstances. The protection that was being sought by the minority here required specific rules that could not be inferred from a general principle of equal treatment either. No general principle of Union law could apply to this situation.

Horizontal direct effect and primacy

The extensive case law of the Court involving directives and their enforcement by individuals at municipal level, has been considered over the years in order to try to identify more clearly the approach that has been taken. The full extent of the principles of direct effect and primacy are quite difficult to identify. Lenaerts and Corthaut, define direct effect narrowly, but define the concept of primacy broadly. In their view, direct effect is the technique which allows individuals to enforce a subjective right, which is only available in the internal legal order in an instrument that comes from outside that order, against another (state or private) actor. The main term in this definition is "subjective right". Whenever individuals enforce an objective right instead, they do not use direct effect but rely on the invocability of EU law. Invocability is the technique that allows the principle of primacy to have effects in litigation involving individuals. From this point or view, the narrow definition of direct effect is complemented by a large understanding of primacy. The national authorities' duty of consistent interpretation is the result of the principle of primacy. It follows from this approach the national rule contravening EU law ought to be set aside (this is the so-called "exclusionary effect)". Its adverse effects on individuals must be accepted as a side effect of the principle of primacy. For example, in cases such as CIA and Unilever, the exclusionary effect results from an objective evaluation of the compatibility of municipal law with EU law. It does not amount to the creation of a subjective right on the basis of EU law (and so does not amount to direct effect), since the exclusion of municipal law results in the application of a distinct rule of municipal law. The second group of academics put forward a different model to explain the Court's case law on direct effect and primacy. This approach, that is most often
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adopted in recent literature, is based on a much larger understanding of the notion of direct effect and a more restrictive understanding of primacy. Prechal, for example, argues that "Direct effect is the obligation of a court or another authority to apply the relevant provision of [Union] law, either as a norm which governs the case or as a standard for legal review". This is independent of whether the individual concerned is looking for a subjective right, or is affected by the incidental effect of an objective judicial review. This approach acknowledges that national authorities' duty of consistent interpretation, is a consequence of the consequence of the Member States' duty of loyal cooperation to give full effectiveness to EU law. This is commanded by the primacy doctrine and is independent from the discussion on direct effect. In these situations, the actual rights of the individuals arise either from municipal law directly, or result from an individual's reliance on the State's general duty to comply with EU law. It is also acknowledged that direct effect is at stake when an individual seeks to obtain a subjective right by direct reliance on EU law. These two understandings of the doctrines of direct effect and primacy illustrate two different understandings of the relationship between the EU and Municipal legal orders: either "unitary/monist" - with the primacy of EU law being the cornerstone of the EU legal order - or "dual/dualist" - with direct effect being the connecting link between the two legal orders. In the unitary approach, the primacy of EU law can result in the duty of the national court to set aside the domestic rule contravening EU law when its validity is challenged incidentally in litigation between private parties despite the fact that it does not fulfill the conditions for direct effect. On the other hand, if one follows the dual approach in the same context, in principle, the national rule remains in force. It is then for the Member State to adjust its national legislation in due time, and individuals may claim reparation for the damage suffered. Each of the two approaches will result in the application of a different source of rights: either the supremacy of EU law demands the exclusion of the municipal law, even if the provision of EU law is not directly effective (unitary model) or the municipal law remains applicable because the provision of EU law is not directly effective (dual model). By way of exception, in the dual model, the judge may acknowledge the existence of specific circumstances requiring the need to set aside the provisions of municipal law. The applicable legal framework is unclear because of uncertainties in the case law of the Court. The Court does not always consistently check the conditions for direct effect, it is therefore difficult to identify which cases support the unitary or the dual model. Also, when a provision of EU law is not directly effective, the Court most often manages to avoid having to oppose the unitary and dual models by insisting on the duty of consistent interpretation of municipal law.

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In clarifying the effects that a provision of EU law is capable of having on individuals, the Court is seeking to combine legal certainty with the effectiveness of EU law. As a result, in the dual approach, by defining direct effect broadly and controlling the justiciability of the relevant provision before giving it effect in horizontal litigation, more legal certainty can be assured than stems from an application of the unitary approach. Municipal and EU legal orders must connect with one another in a context in which neither the authors of the Treaties nor the EU legislative bodies have clearly expressed their intention to modify Union citizens inter-personal relations. Either the Court opts for the unitary approach, and so supports a very ambitious understanding of the process of European integration and primacy, or it opts for the more humble dual approach, and so should justify giving direct effect to provisions of EU law only on a case-by-case basis.

Section 18 European Union Act 2011

In the UK, Section 18 European Union Act 2011 provides that: "Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act." Section 18 has a clear implications for the UK in relation to the application of non directly applicable and non directly effective EU legislation. Any national court that is confronted with a directive that is not directly effective will be under the command of the section to desist from giving it any legal effect through the primacy of Union law, that have been at the forefront of the Court of Justices jurisprudence on ensuring effective judicial protection of Union law rights. This section of the Act enshrines dualist UK constitutional principles. When a provision of Union law is in question, the municipal court will have no power to enforce any rights or obligations etc, that are not directly effective. If the provisions of a directive are in need of interpretation by the Court of Justice then the preliminary ruling that is given can clarify that meaning that can lead to the correct application of the Union law. If we consider the decisions of the Court of Justice in the operation of the preliminary ruling system, and the constitutional significance of certain key decisions that it has taken, then section 18 will not and cannot stop this judicial activism. Preliminary rulings are useful in all circumstances where the correct interpretation is needed and this can apply to primary union law in the constitutive treaties and Charter of Fundamental

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Rights. This interpretative ability used in a teleological mode must then still find its implementation into municipal Law. The law relating to the Charter of Fundamental Rights will certainly be developed by the Court in future years. Indeed, the first signs are already emerging that this is precisely what will happen. Section 18 will not prevent the UK from being further affected by the development of EU law by the Court of Justice.

You be the Judge : EU Law and Municipal Law

Try and answer the following questions: 1. Consider the two following statements: Statement 1 If a provision of Union law is directly effective, that provision of Union law can be enforced directly in national court proceedings. Statement 2 If a provision of an EU Directive satisfies the test in Van Gend en Loos C-26/62, it can be enforced against the state. This is known as vertical direct effect. Which one of the following answers is correct? a. 1. True 2. True b. 1. True 2. False c. 1. False 2. True d. 1. False 2. False Direct Effect 2. In Pubblico Ministero v Ratti C-148/78, the Court of Justice established the point at which an EU Directive can have direct effect. At which point may an EU Directive have direct effect? a. Once the date for its implementation has passed. b. Once the Directive has been published in the Official Journal. c. Once the Directive has been published in the Official Journal, or, if it is not published, within 60 days of its adoption
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d. As soon as the Directive has been adopted. Meaning of an emanation of the state 3. In Case C-188/89 Foster v British Gas the Court of Justice established a test to determine whether a body constitutes an emanation of the state. This test set out a number of conditions which had to be satisfied. What are these conditions? The body must be: a. (i) under the control of the state; and (ii) having special powers. b. (i) provide a public service; and (ii) under the control of the state. c. (i) provide a public service; (ii) under the control of the state; (iii) having special powers; and (iv) having limited or no discretion. d. (i) provide a public service; (ii) under the control of the state; and (iii) having special powers. e. (i) provide a public service; and (ii) having special powers. Primacy and Directives 4. In Marleasing SA v La Comercial Internacional de Alimentacion SA C-106/89, the Court of Justice held that the national courts are under an obligation to interpret national law in such a way that it avoids a conflict with Union law, if that is possible. When does this obligation arise? a. Only if the provision of Union law has been incorporated into the national legal system. b. Never. c. Only if it is possible to interpret national law to conform with Union law. d. In all cases. e. Only if there is a national law on the matter. New Directives 5. Which one of these statements about new EU directives is correct? a. Member States have the obligation not to agree on any measures that could amend the Directive once the Directive has been correctly implemented.

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d. Member States have the obligation to bring a Directive into force as soon as it is adopted in order to bring about a simultaneous harmonisation in all of their territories. c. The EU will always use Directives to legislate on its policies because they are always the best choice of measure because of the long implementation period. d. The EU should not use Directives to implement important policies because these measures always cause serious implementation problems among the Member States. e. Member States have the obligation not to adopt or bring measures into force during a Directives transposition period if such measures are likely to seriously compromise the result required by the directive. Answers 1. a 2. a 3. c. 4. c 5. e

Further reading
Craig, Paul P., The Legal Effect of Directives: Policy, Rules and Exceptions European Law Review, Vol. 34, No. 3, p. 349. This article reconsiders the legal effect of Directives for private parties within Union law. This is a difficult issue that has generated a lot of academic commentary and much case law. It is not an easy article to read, but it does give a good insight into the legal issues involved in this area of the law. Sacha Prechals case comment on Pfeiffer (C-397/01 to 403/01), published in (2005) 42 Common Market Law Review 1445. She explains very clearly all niceties of the CoJEU's case law concerning the legal effects of directives in national legal orders. Lenaerts and Corthaut: "Of birds and hedges: the role of primacy in invoking norms of EU law", (2006) 31 EL Rev 287 and - Dougan: "When worlds collide! Competing visions of the relationship between direct effect and supremacy", (2007) 44 CML Rev 931 present opposing view of the relationship between direct effect and supremacy. "Of Ages in - and Edges of - EU Law" Common Market Law Review 48 (2011) Elise Muir describes clearly the debates that are involved in relating direct effect and supremacy of Union law. It is a very good review of the case law in this area. Book: The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty. A very interesting - if rather expensive book written by experts in the field of EU law who consider various select

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judgments of the ECJ that include the cases regarding direct effects and state liability.

Preliminary Rulings
Table of Contents
Preliminary Rulings Key Points Article 267 TFEU References and Appeals Facts and Figures : References from Member States Any court or tribunal Discretionary References Facts and Figures - Senior Court References Mandatory References The Procedure Request Hearing the case Judgment Urgent Preliminary Rulings Commission as advice giver Case Study - Preliminary Ruling gives a right to clean air? In the News : Reform Proposals Key readings You be the judge : Preliminary Rulings

Key Points
This essay considers the following issues: The constitutional importance of preliminary rulings. The types of body that have standing to make a request.

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The preliminary ruling statistics. The discretion to refer held by municipal courts and tribunals. Possible reforms to the procedure. Introduction The primary purpose of the preliminary ruling procedure is to establish a judicial relationship between Union law and municipal law. It is the procedure that is used to take control of Union legal issues from municipal courts and tribunals. The outcome of the procedure can be compared to EU legislation, particularly the directive that has the legislative function of determining the relationship between the different national legal systems, by removing differences in the laws of the Member States. It is part of the process of legal integration. The use of preliminary rulings, through time has led them to take on a "directive like" character in some circumstances. They have been used to resolve the conflicts of municipal law with Union law, either because there is no directive of harmonisation in place already, or where the directive is not complete, or is not effective to resolve the conflict. Often a directive creates conflicts of law, between municipal and union law which only the Court of Justice can resolve, while further and better legislation is being worked out. EU legislation involves the balancing of many different competing interests, national interests determined by the executive branch of government, as well as special interest groups, especially those represented in Brussels. The court has to look at the competing interpretations of the law put forwards by the member states and the EU institutions and try to reach an interpretation that is legally correct. The development of the legal principles of direct effect, indirect effect and state liability by the Court of Justice have been made possible by this procedure, which has had a profound impact on the process of legal integration. This forward leaning approach by the Court has not been problem free. Using preliminary rulings as a way of advancing integration has involved manipulating the process of interpretation. There are different approaches to interpretation and the one chosen by the court has been one that favours legal integration.

Article 267 TFEU

Article 267 TFEU provides for the procedure. It states that : The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
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(a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay. Under the preliminary ruling procedure, the role of the Court of Justice is to give an interpretation of EU law or to rule on its validity It will not apply that law to the factual situationin the main proceedings, which is the task of the municipal court. The Court will not decide on issues of fact raised in the main proceedings or resolve differences of opinion on the interpretation or application of rules of municipal law. In ruling on the interpretation or validity of EU law, the Court will try to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply, if necessary by disapplying the rule of municipal law in question.

References and Appeals

There are two major differences between an appeal and a reference for a preliminary ruling. Firstly, in the case of an appeal, the initiative lies with the parties to the case to take the matter forward. The party who is dissatisfied with the courts judgment has to decide whether to appeal or not, and then takes the necessary procedural steps. The court normally has no further say in the matter and cannot prevent the appeal from being lodged. Secondly, the appeal court decides the case and it has the power to set aside the decision of the court below. Usually it can then substitute its own decision for that of the lower court. These features are not found in a reference for a preliminary ruling. The municipal court in the case at hand will decide whether the reference should be made, and only specific issues are referred to the Court of Justice. Once it has

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decided these, the European Court sends the case back to the municipal court for a decision.

Facts and Figures : References from Member States

Facts and Figures : Member State court requests for preliminary rulings The preliminary ruling procedure is well used and some Member States having a much higher proportion of requests than others. The following list illustrates this. Number of New References for a Preliminary Ruling from Member State Courts in 2009 Austria 15 Belgium 35 Bulgaria 8 Cyprus 1 Czech Republic 5 Denmark 3 Estonia 2 France 28 Finland 2 Germany 59 Greece 11 Hungary 10 Italy 29 Ireland 0 Malta 1 Latvia 4 Lithuania 3 Luxembourg 0 Netherlands 24 Poland 10 Portugal 3 Romania 1 Slovak Republic 1 Slovenia 2 Spain 11 Sweden 5 United Kingdom 28 Total 301 27 Member States
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Source: Curia EU The number of requests for preliminary rulings range from Germany which had the highest number at 59 down to 0 from Ireland. The UK was in between these two values at 28. The average was approximately 11 per year. The figures show the range of numbers and the demand being made of the Court of Justice from different member states. Clearly some states are much smaller than others in terms of their population and so we could expect a smaller number of references from, for example, Malta when compared with member states with much higher population numbers like Germany and the UK. The figures show that in this one year, however, the Belgian courts requested 35 preliminary rulings and this was well above an average figure for a country with a relatively small population. The types of issues that form the factual background for preliminary rulings are wide-ranging.

Source : Curia EU It can be seen that there are a number of different areas of EU law that are generating requests for clarification on issues of interpretation or validity. The piece of the pie entitled "other" contains legal areas such as competition law, the Common Customs Tariff, the free movement of persons, european citzenship,
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industrial policy, and the principles of Union law amongst others. The largest piece of pie (33 cases) is the area of law that is on the environmental and consumer law. Even so, it is only about 10% of the overall case load. Analysis of the figures A study by Lars Hornuf and Stefan Voihgt from the Universities Hamburg and Munich have also interpreted the figures. In their study entitled "Analyzing the Determinants that Made the CoJEU the Powerful Court it Is", three main factors are considered to lie behind the variations in the number of preliminary rulings from the Member States. Firstly, there is the economic dimension, with the size of the member states economy having a bearing on the number of references being made. The larger the economy of the state, then the larger the potential for preliminary rulings to arise. Secondly, there is the issue of the different national judicial structures. The main difference between the member states is the way that Union law takes effect in national law. Monist legal systems treat national and EU law as being of the same legal value. In monist constitutions judges are used to relying on international law in arriving at their decisions, when compared with judges in dualist systems. Dualist legal systems see national and international law as being independent of one another. This is the case in the UK where, "until they are embodied in laws enacted by Parliament Lord Denning said in the case of Blackburn v Attorney General [1971] 2 All ER 1380, the UK courts take no notice of treaties. Does this mean that the judges from monist legal orders request preliminary references more often than those from dualist ones? Perhaps, but the opposite could also be true, because judges in monist orders have more experience in interpreting international law, and consider themselves as experts in this area, so they are less likely to draw on the expertise of the judges in Luxemburg. The presence of judicial review could have an influence on the likelihood of judges asking for preliminary references. It could depend on whether the national law provides for a special court with competence to review the constitutionality of legislation. It could be considered that the preliminary ruling procedure gives lower court judges in the member states power to bypass the domestic top-level judges and change the balance of power within the national judiciary. Another factor to consider is whether the country operates under a common law or civil law system. In common law countries, such as the UK, judges are expected to help develop the law. The possibility exists that judges in common law countries will request preliminary references less often than judges in civillaw countries. One other legal factor could be the familiarity of the judiciary with European law. If they are familiar with Union law then requests could be more commonplace.
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On the other hand, due to their training in European issues, judges with such legal education might be more confident in deciding issues involving EU law on their own. The third and final factor is socioeconomic. Member states that are geographically very distant from Brussels might be very "distant" from its legal institutions too, and draw on the preliminary references procedure less often than judges located in countries geographically closer to Brussels. The national sentiment toward European integration could also act as a determinant of requests for preliminary references. The results of the analysis by the authors in the report determined that the relative size of the agricultural sector had a suppressing effect on the number of preliminary references, whereas familiarity with EU law, the litigiousness of their societies, and a judicial system providing for judicial review at every level of court have a positive effect. A high level of international legal training has an effect on Article 267 TFEU activities. The drivers of preliminary references are not fixed and can change over time. While in the early decades of the CoJEU, the share of agriculture in the economy had a positive effect on the number of preliminary rulings, taxation matters most today. Berkeley Program in Law and Economics UC Berkeley "Preliminary References Analyzing the Determinants that Made the ECJ the Powerful Court it Is" Hornuf, Lars, University of Munich, Germany Voigt, Stefan, University of Hamburg and CESifo, Munich, Germany Publication Date: 05-17-2011

Any court or tribunal

Article 267 provides that the Court of Justice can hear a request for a preliminary ruling from "any court or tribunal". The expression is not defined in the treaty and so the court has had to interpret it. In the case law that follows, the court can be seen to give the widest possible interpretation to the expression "court or tribunal" so as to make the procedure as accessible as possible.

This case of C. Broekmeulen v Huisarts Registratie Commissie C-246/80 [1981] ECR 2311 concerned the interpretation of two directives on the recognition of the qualifications and freedom of establishment and freedom to provide services by doctors. The context of the case was concerning the registration of a doctor in Dutch law, who, having acquired a qualification in Belgium was refused access to the Dutch general practitioners register without additional training. The request for the preliminary ruling came from the appeals committee.

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According to the rules of the Netherlands Society for the Promotion of Medicine, the appeals committee was appointed for a five year period and was made up of three members appointed by the Netherlands medical faculties, three members appointed by the board of the society and three members, including the chairman (preferably a high ranking judge), who were appointed by the ministers responsible for higher education and health respectively. The committee determined disputes on an adversarial basis, hearing the registration committee and the doctor concerned who could be legally advised. In order to work in Dutch law as a doctor in general practice the doctor must be enrolled on the register of general practitioners. A doctor who has not been registered cannot work to treat patients on the social security system. Private practice is impossible as well because insurance is required that also involves having a place on the register. The Court of Justice noted that it was for member states to take the necessary steps to ensure that they adopted the provisions of Union institutions and implemented them fully. If the task of implementing such provisions fell to a body acting under a degree of governmental supervision, and if that body, in conjunction with the public authorities, creates new procedures which may affect the exercise of rights granted by Union law, it is imperative, in order to ensure the proper functioning of Union law, that the court should have an opportunity of ruling on the issue interpretation and validity arising from such proceedings. Given that there was no right of appeal to the ordinary courts, the appeals committee, which operates with the consent of the public authorities, with their cooperation, and which after adversarial procedure, delivers a decision which is recognizes final, must, in a matter involving the application of Union law is to be considered as a "court or tribunal" within the meaning of Article 267. The case of Pretore di Sal v Persons unknown C-14/86 [1097] ECR 2545, concerned the interpretation of a directive on water quality, and a preparatory criminal inquiry against "persons unknown" for polluting an Italian river. The inquiry was run by a Pretore who acts as a public prosecutor and an examining magistrate. At the time of the request for a ruling no persons had been charged and, arguably, the request was therefore premature. Nevertheless, the Court of Justice considered that it had jurisdiction to hear the request, because the Pretore was acting in the general framework of judging, independently in accordance with law cases coming within the jurisdiction conferred on it by law, even though certain functions of the court were not, strictly speaking, of a judicial nature. If the interpretation of Union law is to be of use to the municipal court it is essential to define the legal context in which the interpretation requested should be placed. It might be convenient in certain circumstances, as existed here, for the facts of the case to be established and the questions of municipal law to be settled a time when the reference is made, so as to allow the Court of Justice to be
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aware of all the matters of fact and law which may be relevant to the interpretation of Union law that it is called on to give. The case of Dorsch Consult v Bundesbaugesellschaft Berlin C-54/96 ECR [1998} II-667 concerned a tendering process in respect of a contract for architectural and construction engineering services. Dorsch Consult had been unsuccessful in this tendering process. Dorsch Consult applied to the Federal Ministry for Regional Planning, Building and Urban Planning, as the body responsible for reviewing public service contract awards, to have the contract awarding procedure stopped and the contract awarded to it. The review body held that it had no competence in the matter on the ground that, under German public service contract law it had no power to review the award of contracts when they related to services. Dorsch Consult lodged an application for a determination by the Federal Supervisory Board on the ground that the review body had wrongly declined jurisdiction. The Federal Supervisory Board then made a request for a preliminary ruling on the substantive EU law questions of public service contract law. However, the admissibility of the request was another issue that had to be decided because it was not clear that the Federal Supervisory Board was a court or tribunal. The Court of Justice considered its standing in EU law. The Federal Supervisory Board was established the HGrG (Budget Principles Law) and had a permanent existence. The legislation established it as the only body for reviewing the legality of determinations made by review bodies. In order to establish a breach of the provisions governing public procurement, application must be made to the supervisory board. Wwhen the supervisory board found that determinations made by a review body were unlawful, it directed that body to make a fresh determination, in conformity with the supervisory board's findings on points of law. General procedural requirements, such as the duty to hear the parties, to make determinations by an absolute majority of votes and to give reasons were also found in legislation. The Federal Supervisory Board applied rules of law. The members of its chambers were independent and subject only to observance of the law. It followed from all the facts that the Federal Supervisory Board, should be regarded as a court or tribunal within the meaning of Article 267 so that the substantive question of Public Procurement Law that it referred to the Court of Justice was admissible. In its interpretation of Article 267 the Court of Justice had given a wide interpretation of the meaning of court or tribunal. It should be noted that the German law domestic legislation had not conferred on the Federal Supervisory Board powers in the specific area of public service contracts
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In the case of Synetairismos Farmakopoion Aitolias & Akarnanias (SYFAIT) v Glaxosmithkline Plc C-53/03 the point was reached where the body concerned could not be described as a court or tribunal. Glaxo Smithkline is a large pharmaceutical company that supplied drugs to the complainants who were Greek associations of pharmacists and wholesalers of pharmaceutical products. After buying the drugs a large proportion of these supplies were exported to other Member States, where prices were considerably higher. In order to combat this, the company decided to reduce supplies to the wholesalers. A case was brought before the Greek Competition Commission, the Epitropi Antagonismou. The Court of Justice considered the admissibility of the request as the Commission was a "quasi judicial" body. The Court considered its position in municipal law and looked at four main issues. Firstly, it was noted that the Commission was subject to ministerial supervision which implies that that minister is empowered, within certain limits, to review the lawfulness of its decisions. Secondly, it was noted that its members were not offered any particular safeguards against undue intervention and political pressure from the executive. Thirdly, the Competition Commission had a functional bond with its secretariat that was a fact-finding body on the basis of whose proposal it adopts decisions. Municipal Law gave to the president of the Competition Commission the power to co-ordinate the general policy of its secretariat and to exercise disciplinary power over its employees. Finally, it was recalled that preliminary questions may be referred for a ruling only when they arise in the context of a purely judicial procedure. However, all national competition authorities were obliged to work in co-operation with the Commission and it may drop an investigation if it wanted to. It was concluded from these issues that the Competition Commission did not qualify as a judicial authority and so its request for a ruling was inadmissible. A court or tribunal that can refer a question under Article 267 must be a body established by law, be permanent, exercise compulsory jurisdiction, have an inter partes procedure, and must apply rules of law in an independent fashion Criminal proceedings against Standesamt Stadt Niebll C-96/04.

Discretionary References
Paragraph 2 of Article 267 provides that a national court or tribunal "may" ask the Court to give a preliminary ruling if it considers that a decision on the question is "necessary" to enable it to give judgment. The Court of Justice has also decided that a national court or tribunal must request a preliminary ruling if it considers that an act of the Union is not valid, or it wishes to prevent its application for that reason.
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These cases of Rheinmhlen I & II (C-146 & C-166/73 Rheinmhlen-Dsseldorf v Einfuhr- und Vorratsstelle fr Getreide und Futtermittel) involved a preliminary ruling being requested by an inferior German court against whose decisions there was a right of appeal. The question was whether or not the preliminary ruling procedure would still apply, and allow it to make requests to the Court of Justice in circusmtances where it would be subject to a binding decision of a higher court? In an emphatically positive reply the Court of Justice made a number of important points about the meaning of the Article for inferior courts. It said that Article 267 TFEU is essential for the preservation of the Union character of the law established by the Treaties and has the object of ensuring that in all circumstances this law is the same in all States of the Union. While it aims to avoid divergences in the interpretation of Union law which the national courts have to apply, it also tends to ensure this application by making available to the national judge a means of eliminating difficulties which may be occasioned by the requirement of giving Union law its full effect within the framework of the judicial systems of the Member States. Article 267 gives national courts the power and, where appropriate, imposes on them the obligation, to refer a case for a preliminary ruling, as soon as the judge perceives either of his own motion or at the request of the parties that the litigation depends on a point referred to in the first paragraph of Article 267. It follows that national courts have the widest discretion in referring matters to the Court of Justice if they consider that a case pending before them raises questions involving interpretation, or consideration of the validity, of provisions of Union law, necessitating a decision on their part. A rule of municipal law by which a court is bound on points of law by the rulings of a superior court cannot deprive the inferior courts of their power to refer to the Court questions of interpretation of Union law involving such rulings. When making a request for preliminary ruling, a national court typically needs to provide for at least two things: submitting the question itself and for staying the national proceedings. The latter decision (typically in form of an order) can normally be reviewed. The character of the former is more uncertain. To make the issue more complicated, the order for staying the domestic procedure and the order submitting a request for a preliminary ruling to Luxembourg need not both be in the same decision: they may be contained in two separate decisions. After the request for the ruling is made then the national court procedure is stayed and the decision of the Court of Justice is awaited. In this waiting period however the parties to the case may appeal to a higher national court that may hear their case.

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The question as to what effect an available national appeal can have on a reference-making order arose in the very first request for a preliminary ruling, in C-13/61 de Geus. There the order became subject of review before the Dutch Hoge Raad. The Court of Justice came to the conclusion that national appeals against an order making reference to it are possible, as the Treaty did not prevent the Member States from maintaining such appeals in municipal law. At the same time, however, the Treaty made the jurisdiction of the Court of Justice dependent solely on the existence of a request for a preliminary ruling made by the national court. This meant that the CoJ will be entitled to address the issue submitted to it as long as the request has not been officially withdrawn by the submitting national court. In Rheinmhlen II the Court said that:in the case of a court against whose decisions there is a judicial remedy under national law, Article [267] does not preclude a decision of such a court referring a question to this court for a preliminary ruling from remaining subject to the remedies normally available under national law." In an attempt at judicial harmonisation, it turns appellate courts into a sort of "consultancy agencies" of the first instance courts. The appeal is just an "advice" to the first instance court, the appellate decision can be selectively set aside by the first instance court. It is a logical consequence of the unreserved principle of primacy of Union law. The Union-based privilege to set aside is to be applied within the judicial hierarchy, to individual superior judicial decisions. The case of Cartesio (C-210/06 Cartesio Oktat s Szolgltat bt) involved some important questions about the role of inferior courts in relation to the preliminary ruling procedure. Cartesio was a limited partnership under Hungarian law. It was registered in the national commercial register on 11 June 2004. Later the next year, Cartesio applied to the Regional Court, sitting as a commercial court, for registration of the transfer of its seat to Italy and, in consequence, for amendment of the entry regarding Cartesios company seat in the commercial register. In January 2006, that application was rejected on the ground that the Hungarian law in force did not allow a company incorporated in Hungary to transfer its seat abroad while continuing to be subject to Hungarian law as its personal law. Cartesio appealed against that decision to the Regional Court of Appeal. The Regional court asked a number of questions about the nature of the preliminary ruling procedure in the circumstances. One question raised, was whether a national measure which, in accordance with municipal law, gives a right to bring an appeal against an order making a reference for a preliminary ruling, in any way limit the power of the Hungarian courts to refer questions for a preliminary ruling or could it limit that power
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derived directly from Article 267 if, in appeal proceedings, the national superior court may amend the order, render the request for a preliminary ruling inoperative and order the court which issued the order for reference to resume the national proceedings which had been suspended? The Court of Justice held that where rules of municipal law apply which relate to the right of appeal against a decision making a preliminary reference, and under those rules the main proceedings remain pending before the referring court in their entirety, the order for reference alone being the subject of a limited appeal, Article 267 means that the jurisdiction conferred by that provision on any municipal court to make a reference to the Court of Justice for a preliminary ruling cannot be called into question by the application of those rules, where they permit the appellate court to vary the order for reference, to set aside the reference and to order the referring court to resume the municipal law proceedings. The Court of Justice recalled that, in the case of a court or tribunal against whose decisions there is a judicial remedy under municipal law, Article 267 does not preclude decisions of such a court by which questions are referred to the Court for a preliminary ruling from remaining subject to the remedies normally available under national law. Nevertheless, in the interests of clarity and legal certainty, the Court of Justice must abide by the decision to refer, which must have its full effect so long as it has not been revoked. The case of Elchinov (C-173/09 Georgi Ivanov Elchinov v Natsionalna zdravnoosiguritelna kasa) has confimed that EU law precludes a lower court from complying with a supreme court judgment if the lower court has reason to believe that that judgment is at odds with EU law. The facts of this Bulgarian case involved cross border access to healthcare. There was a dispute between the claimant, Elchinov, who hoped that he was entitled to funding for an advanced eye treatment in Germany, when the same facilities were not available in his native country. The national healthcare authorities were not of the same opinion. Elchinov appealed against a decision of the director of the national social security fund refusing him funding. The Administrative Court of Sofia annulled that decision after which the social security fund then appealed against that judgment before the Supreme Administrative Court. The Supreme Administrative Court quashed the ruling of the administrative court in Sofia and referred the case back to that court. Bulgarian administrative law provided that in such situation the directions of the Supreme Administrative Court on the interpretation and the application of the law are mandatory for the subsequent examination of the case. The Administrative Court of Sofia was, however, in doubt whether the ruling of the
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highest administrative court was in conformity with EU law and referred the matter to the Court of Justice. One of the questions raised in the preliminary ruling was whether, having regard to the principle of procedural autonomy: was the lower national court obliged to take account of binding directions given to it by a higher court in these circumstances of doubt regarding the higher courts interpretation of the law, or couild it decide the case differently? The Court of Justice noted that this was a hypothetical question because there was a preliminary ruling being made in the case at hand. After considering earlier case law including Rheinmhlen I & II, it held that Union law precludes a national court which is called upon to decide a case referred back to it by a higher court hearing an appeal from being bound, in accordance with national procedural law, by legal rulings of the higher court, if it considers, having regard to the interpretation which it has sought from the Court, that those rulings are inconsistent with EU law.

Facts and Figures - Senior Court References

Number of references by senior courts from selected Member States until 2009 Member Date of Court References State Accession Austria January 1, 1995 Verfassungsgerichtshof Oberster Gerichtshof Verwaltungsgerichtshof Belgium July 20, 1952(founder member) Cour Constitutionelle (formerly Cour d'Arbitrage) Cour de Cassation Conseil d'Etat Denmark France January 1, 1973 July 20, 1952(founder member) Hjesteret Conseil Constitutionnel Cour de Cassation Conseil d'Etat Germany July 20, 1952(founder member) Bundesdverfassungsgericht 4 71 57 71 12 43 22 0 83 42 0

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Bundesgerichtshof Bundesverwaltungsgericht Bundesfinanzhof Bundesarbeitsgericht Bundessozialgericht Ireland Italy January 1, 1973 July 20, 1952(founder member) Supreme Court Corte Suprema di Cassazione Corte Costituzionale Consiglio di Stato July 20, The 1952(founder Netherlands member) Spain United Kingdom January 1, 1986 Raad van State Hoge Raad der Nederlanden Tribunal Constitucional Tribunal Supremo January 1, 1973 House of Lords Court of Appeal

120 88 250 17 73 17 101 1 62 59 177 0 22 40 45

The number of references has been linked to the size of the state involved; the organisation and culture of its legal system; the jurisdiction and case load of its top court(s); the length of membership; the evolution of the substantive scope of Union law; and the volume of economic exchange with other Member States, which has been shown to have a major effect on the rate of national reference rates.

Mandatory References
Paragraph 3 of Article 267 makes it a mandatory requirement for courts or tribunals against whose decisions there is no judicial remedy under national law to make a request for a preliminary ruling when they are in any doubt as to the interpretation or validity of EU law. The question of whether a court or tribunal is one against whom there is no judicial remedy available can be answered by looking at two different theories: the abstract theory and the concrete theory. According to the abstract theory it is only courts or tribunals whose decisions are never subject to appeal under Municipal law that should be considered courts of
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last instance. The facts that the plural decisions is used in the wording of the article from a textual approach speaks for this interpretation. It has also been argued that it cannot have been intended that minor cases, not possible to appeal due to their lack of importance, would have to be referred. The concrete theory takes the view that a reference has to be made every time that there is no possibility to appeal to a higher court in the type of case at hand. This would widen the number of municipal courts falling within the meaning of article 267(3) to include also some junior municipal courts. In its case-law the Court has applied the concrete theory. In Costa v ENEL the Giudice Conciliatore in Milan, whose decision could generally be appealed against but not in the present case, due to the small amount of money involved in the case, was considered to have an obligation to refer. Given the purpose of article 267(3) and the fact that the abstract theory would not guarantee that there always was a court falling under the paragraph, the concrete theory is to preferred from the legal integration perspective. The Cilfit case (Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health C283/81) involved a request for a preliminary fuling from an Italian court of final appeal that sought clarification of its obligation to make a request in all circumstances. The court of Justice noted the the value of the use of acte clair where a previous case had been decided on the same question. Acte clair means that the highest court is not under an obligation to refer if the question that has arisen has already been answered in an earlier judgment of the Court of Justice. Where there was no earlier decision on the same point of law there could be circumstances where it was not obligatory to make a reference. This is the doctrine of acte claire that a court or tribunal of final instance should make a reference unless it has established that the question raised is irrelevant or that the provision in question has already been interpreted by the Court or that the correct application of Union law is so obvious as to leave no scope for any reasonable doubt. There was a notable condition when using thie legal principle, that the correct application must be assessed in the light of the specific characteristics of Union law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Union. This case of Lykeskog (Criminal proceedings against Kenny Lyckeskog C-99/00) involves the interpretation of the meaning of a court of last resort under Article 267 TFEU, with regard to the Swedish courts system.
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In this case a Mr Lyckeskog entered Sweden from Norway with 500 kg of rice in his car. By a decision of the local customs authorities the permitted duty-free quantity of rice was set at 20 kg. So Mr. Lyckeskog was charged with attempt to smuggle the rice into Sweden. According to Regulation 918/83, travellers from third countries are relieved from custom duties for goods in their personal luggage as long as this goods is of a non-commercial character. Mr Lykeskog appealed to the Court of Appeal for Western Sweden. The court considered that it could rule on the merits of the case given that there was no difficulty in interpreting the applicable provisions of Union law. Nevertheless, the court expressed uncertainty about whether it was a court ruling at last instance, and for that reason was then obliged under the third paragraph of Article 267 TFEU to refer a question for a preliminary ruling to the Court of Justice in order to enable it to interpret the relevant provisions of Regulation 918/83, because the conditions laid down in the judgment in Case 283/81 CILFIT on acte claire or acte clair did not appear to be satisfied. Under Swedish law, this type of decision by Court of Appeal can always be appealed to the Supreme Court. The Supreme court will decide to grant leave to appeal only if it is important for the uniform application of the law or there are particular reasons for hearing the appeal, such as a serious omission or error by the Court of Appeal. After restating the purpose of the obligation to refer, the Court held that when a decision from an Appellant Court can be challenged before the Supreme Court, this decision is not given by a court of last instance. The Supreme Court can make a declaration of admissibility if it is important for guidance to the application of the law that the appeal be examined by that court. Uncertainty as to the interpretation Union law, may give rise to review, at last instance, by the supreme court. If a question arises as to the interpretation or validity of a rule of Union law, the supreme court will be under an obligation, under paragraph three of Article 267 TFEU, to refer a question either at the stage of the examination of admissibility or at a later stage. Looking at the statistics for the Swedish Supreme Court for 2006-2010, there are a significant proportion of appeal cases where leave to appeal to it have not been granted. It could be a perfectly legitimate decision not to grant leave by the Supreme Court. The decision by the Court of Jusice in Lyckeskog will prevent the Swedish appeal courts from having any obligation to make a request for a preliminary ruling. This
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decision has limited significantly the number of cases where making a request is compulsory in Sweden.

Source : www.domstol.se/Publikationer/Statistik/court_statistics_2010.pdf

The Procedure
The rules for proceedings before the Court of Justice are set out in Protocol No. 3 on the Statute of the Court of Justice and the Rules of Procedure of the Court of Justice.

Request
The proceedings begin with a request from a national court, which submits to the Court of Justice the decision to which the preliminary question relates and a copy or summary of the file for the proceedings. This is done in the language of the national court. The decision to refer is is then transmitted to the parties in the main action, the Member States and the Commission and to the institution, body, office or agency of the Union which adopted the act the validity or interpretation of which is in dispute. The Court of Justice can ask the referring court to provide further clarification if necessary. As in other Court proceedings, Member States and institutions of the Union may intervene in cases before the Court of Justice in order to give their position on the issues in the raised by the proceedings.

Hearing the case

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The parties, the Member States, the Commission and, if it is appropriate, the European Parliament and the Council have an opportunity to submit written observations. After the judge-rapporteur has delivered his or her report for the hearing, the parties and the authorities and institutions may ask for the Court to handle the case orally so that they can give their viewpoint at the hearing. Some weeks or months after the hearing, the Advocate-General will deliver his or her conclusions. The Court may decide, after hearing the Advocate-General, that the case shall be determined without a submission from the Advocate-General.

Judgment
Some months after the Advocate-General has delivered his or her conclusions, the Court of Justice will issue judgment in open court. The Court informs the parties concerned of its judgment beforehand. The judgment is then announced to all parties and to the court that referred the preliminary question. It is binding for all judicial bodies that may have to hear the substance of the case. Other courts can either follow the interpretation provided or refer to the Court of Justice.

Urgent Preliminary Rulings

The Brussels European Council of November 2004 considered that thought should be given to creating a solution for the speedy and appropriate handling of requests for preliminary rulings concerning the area of freedom, security and justice (AFSJ), where appropriate, by amending the Statutes of the Court. This resulted in amendments to the Rules of Procedure of the Court of Justice. Three features distinguish the procedure from the ordinary preliminary ruling procedure. First, only the parties to the main proceedings, the Member State of the court making the reference, the Commission and, if appropriate, the Council and the European Parliament are authorised to lodge written observations in a short period of time. Secondly, the internal handling of cases is accelerated considerably, as all cases falling within the AFSJ are, as soon as they reach the Court, referred to a Chamber of five judges specifically designated. Thirdly, communication between the Court and the municipal courts, the parties to the main proceedings, the Member States and the Union institutions will, as far as possible, be electronic.

Commission as advice giver

The European Commission's advisory opinions
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Procedures by which national courts can ask the European Commission for legal advice have been laid down in the fields of competition law and State aid. In some cases these procedures can act as a substitute for making a request for a preliminary reference. While a preliminary ruling by the Court of Justice is binding on the referring court, such an opinion by the Commission is not binding at all. Obtaining an opinion from the Commission does not affect the national courts opportunity to request a preliminary ruling from the CoJEU. In competition matters the Commissions provision of assistance to national courts has been set out in Regulation 1/2003 on the implementation of the rules on competition laid down in Articles 101 and 102 TFEU. The Commission has also issued a Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 101 and 102 TFEU'. According to this notice, the Commissions duty to assist national courts in the application of Union competition law first of all consists of an obligation to transmit factual information to these courts. The national court may request certain documents from the Commission or may ask for information of a procedural nature regarding matters such as whether a certain case is pending before the Commission, whether the Commission has initiated a procedure on a certain matter, or whether it has taken a position in a given case. A national court may also obtain information about when the Commission expects that a decision will be taken. The notice also provides that a national court may ask the Commission for its opinion on questions concerning the application of the Union competition rules, including its assessment of economic, factual, and legal matters. The Commission will limit itself to providing the national court with the requested information or clarification, without considering the merits of the case pending before the national court. Moreover, the Commission will not hear the parties to the case before it submits its opinion to the national court. In the field of State aid the Commission has issued a Notice on the enforcement of State aid law by national courts. This is similar to the notice on cooperation in competition. The State aid notice identifies two different forms of Commission support for national courts. The first is where the national court may ask the Commission to provide information that is in the Commissions possession, and second, the national court may ask the Commission for a non-binding opinion concerning the interpretation of the State aid rules. Outside the fields of competition and state aid, Article 4(3) TEU establishes a general duty on the Commission to loyally cooperate with national courts and to assist them when needed in order to ensure a correct application of Union law. Under the judicial system of the EU, however, only the Court of Justice can authoritatively determine the correct interpretation of Union law.

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Case Study - Preliminary Ruling gives a right to clean air?

The principle that rights could be conferred by articles of the Treaties and by Directives was established by the Court of Justice of the European Union years before other institutions of the Union began (in the early 1970s) to engage seriously with energy, air pollution, water quality, nature conservation and other issues. It bacame a point of interest to environmentalists and other public interest groups such as the Royal Society for the Protection of Birds in the UK, that there may be provisions of environmental laws that may be worded in such a way so as to create rights for the protection of the environment that could be enforced before municipal courts. Directive 79/923 (the Shellfish Waters Directive) required member states to take measures to protect waters, including shellfish waters, against pollution for the protection and improvement of the environment and to safeguard certain shellfish populations from harmful consequences resulting from the discharge of pollutant substances into the sea. In 1991 a further directive laid down health conditions for the production and marketing of shellfish intended for immediate human consumption. The UK transposed the requirements of that directive into the Food Safety (Live Bivalve Mollusc and other Shellfish) Regulations 1992. Shellfish waters were then classified for their quality. In the case of Bowden v South West Water Services Ltd and Another [1999] 3 CMLR 180, Richard Bowden, a North Devon mussel fisherman, whose livelihood was threatened by the newly classified poor quality waters in the river Torridge estuary took action for damages against South West Water Services Ltd, the Environment Agency, the Secretary of State for the Environment and the Director General of Water Services for breach of the Shellfish Waters Directive 79/923. The Court of Appeal heard the case on appeal from the High Court. Beldam LJ considered that it was arguable that the Shellfish Waters Directive did confer a right upon anyone who might benefit from the equal conditions of competition and the common market in shellfish which, according to its fourth recital, was one of the aims of this Directive. In this instance, the claimants success depended upon Lord Justice Beldam's (supported by two fellow judges) considering the significance of the economic, rather than the environmental aspect of this particular Directive. Like other Directives aimed at protecting various sectors of the environment, Directive 79/923 'on the quality required of shellfish waters' was nominally in pursuit of the aim of harmonisation of markets and removal of barriers to free trade under Article Article 115 TFEU. Beldam LJ placed more weight upon this particular basis of the Directive. He considered that 'the failure to protect the shellfish populations [from pollution
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from sewage discharges] could result in unequal conditions of competition, which means that those who collect and market shellfish may have been intended to have a right of reparation if there was a failure to implement the Directive's requirements'. The claimant, whose livelihood depended upon being able to collect and sell a viable population of marketable mussels, was recognised to be a recipient of the 'right' conferred by this Directive. The environmental aspect of the Shellfish Directive is not important before the courts: mussels are regarded as an economic resource like any other and, if faulty implementation places a UK citizen at a trading disadvantage relative to, say, a Belgian or Spanish mussel fisherman, then the UK government (or one of its emanations) becomes liable for compensation to that individual. Since the great majority of actions in direct effect and state liability will be heard in municipal courts and without referral to the Court of Justice, they will inevitably be influenced by national traditions of interpretation. The Court of Justice has its own methods of interpretation. If such a case is brought before it under the preliminary ruling procedure, requiring the interpretation of a Directive on, say, air quality standards, it may be then that EU citizens will get a right to clean air.

In the News : Reform Proposals

In the news : Reform of the Preliminary Rulings Procedure The House of Lords European Union Committee regularly provides interesting reports about topical issues in the European Union. One such report was prepared on the workload of the Court of Justice. The submissions to the Committee and the proposals for reform throw some light on the workings of the Court in this area. After reading through this summary of the report do you think that any of the proposals are worthwhile? HOUSE OF LORDS European Union Committee 14th Report of Session 201011 "The Workload of the Court of Justice of the European Union" The House of Lords Committee heard five suggestions for improving the system of preliminary rulings: (i) sharing jurisdiction for preliminary rulings between the CoJEU and the General Court; (ii) the use of a filter or leave mechanism designed to govern when, by whom and under what circumstances the application will be heard;
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(iii) a green light system built around the inclusion by the national court seeking a reference of a provisional answer to the question; and (iv) a requirement that the member of the CoJEU judiciary from the Member State whence the request comes from would be obliged to sit on the judicial panel deciding the case. (v) increasing the number of Advocates General (i) Sharing the preliminary ruling workload between the CoJEU and the General Court Provision for this reform was first included in the Treaty of Nice in 2001, and it could be acheved without involving any Treaty changes. Professor Tridimas and Professor Arnull supported this a reform, although the latter recognised that under the Treaties' existing provisions there were difficulties in allocating which type of case would be heard by which Court because many references cut across several areas of Union law. Seor Requena for the Commission argued that it was crucial to keep the competences for these preliminary references at the level of the Court of Justice being the equivalent of a Supreme Court in Europe. This opinion was shared by the CCBE. Judge Nicholas Forwood suggested that some preliminary rulings could be handed down by the GC within specific areas of EU law, and the examples he offered were trade mark law or competition. However, he too recognised that deciding which cases would be heard by which court could pose practical problems because some areas of EU law will inevitably overlap with others, for example taxation law impacting on the area of freedom of movement. It was the view of the House of Lords Commission that, given the wider constitutional significance of preliminary rulings, and given that the Geneal Court is overburdened already the preliminary ruling jurisdiction should remain exclusively with the CoJEU. {ii) A filter system designed to govern when, by whom and under what circumstances the application will be heard; The idea that the CoJEU should select only those preliminary questions which it considered were sufficiently important for Union law is not a new idea. The Working Party rejected it, arguing that the relationship of "cooperation and dialogue" between the CoJEU and the national courts inherent in the preliminary ruling system would be upset if it were used.
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On the other hand Professor Jacobs argued that it would be useful to be able to limit the court to deciding cases that were important for the Europen Union System. Professor Arnull argued that "if we could identify the small issues and set them apart, then that would be very convenient" but he was not confident that it could be done. It was considered that is was important that any filtering reform should not disrupt the delicate relationship between the national courts and the CoJEU, in particular when there is no evidence to support any argument that this reform would address the central goal of reducing the CoJEU's workload. (iii)The green light system This went further than the Court's existing rules of procedure which merely ask national courts to formulate a proposed answer to the question referred. This idea had been put forward by Professor Jacobs. The Government questioned the status of the green light and the CCBE suggested that the judiciary in some Member States would actually be deterred from making a reference if there was an obligation to formulate a provisional answer. The Lords Committe rejected the idea of making the practice compulsory but saw merit in the Court taking further steps to encourage national courts making reference requests to adopt this policy. (iv) Including a national CoJEU judge from the country where the reference originates to be routinely included in the CoJEU chamber for the case The Government thought that in some cases it would be essential to have a judge with an understanding of the common law tradition as part of the judicial chamber deciding the preliminary reference. Professor Jacobs did not agree and cited the collegiate ethos of the institution whereby at the beginning of the CoJEU's procedure, the whole Court considers the preliminary reference request. He also thought that it was possible for members of the Court who are not sitting in the case to keep the members who are sitting informed about any particular problems that may arise as a matter of Municipal Law. The particular recommendation was not accepted by the Committee. It was considered that any such restriction on the pool of judges available to sit in any given preliminary reference request would exacerbate the workload problems of the CoJEU. (v)Increasing the number of Advocates General There is provision in the Treaty for increasing the number of AGs if the Member States unanimously agree to such a request by the Court. Advocate General Sharpston suggested that with the complexity of cases that require the opinion of
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an Advocate General then consideration could be given to adding three more thereby raising the current number of AGs from eight to eleven. It was the Committees view that an increase in the number of AGs should be made as soon as possible and a recommendation was made that the Court of Justice should make such a request to the Council. Professor Sir Francis Jacobs, School of Law, Kings College London; Advocate General, European Court of Justice, 19882006 Seor Luis Romero Requena, Director-General of Legal Service, European Commission Professor Anthony Arnull, Barber Professor of Jurisprudence, University of Birmingham Sir Konrad Schiemann, UK judge at the Court of Justice Judge Nicholas Forwood, UK judge at the General Court Avocate General Eleanor Sharpston Council of Bars and Law Societies of Europe (CCBE) Professor Takis Tridimas

Key reading
"Preliminary rulings - another infant disease" by Philip Allott in the European Law Review Issue: 25, 5 538 - 547 is a good overview of the legal policy issues that lie behind the creation of the preliminary ruling process and its inherent weaknesses. "National Courts and the European Court of Justice: A Public Choice Analysis of the Preliminary Reference Procedure". Tridimas, G. and T. Tridimas (2004), International Review of Law and Economics 24(2):125-145. A god look at the development of preliminary rulings into a mechanism for the enforcement of EU law, and the emerging relationship that has been built up between litigants, national courts and the CoJEU. "The Law Lords and the European Union: swimming with the incoming tide" Arnull, A European Law Review 2010 This interesting article looks at the reception of European Union law by the Appellate Committee of the House of Lords between United Kingdom accession on January 1, 1973 and the transfer of the Committee's functions to the UK Supreme Court on October 1, 2009.

You be the judge : Preliminary Rulings

You be the Judge : Preliminary Rulings 1.What type of question can a national court or tribunal refer to the CoJEU, pursuant to Art 267 TFEU? Choose one answer from the list below:

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a.A question which relates to the validity of EU Regulations and EU Directives. b.A question which relates to the interpretation of the Treaties and interpretation/validity of EU Regulations and EU Directives. c.A question which relates to the interpretation of the Treaties d.A question which relates to the interpretation of EU Regulations. e.A question which relates to the interpretation of EU Directives. 2.Article 267, paragraph 2, provides that any court or tribunal may make a referral to the CoJEU if the national court or tribunal considers it to be: a.In the interests of the parties. b.Required to enable it to give judgment c.Necessary to enable it to give judgment d.Appropriate to enable it to give judgment e.Essential to enable it to give judgment. 3.On which courts and tribunals does Article 267, paragraph 3 impose the obligation to make a referral to the CoJEU? Choose one answer from the list below: a.Member State High Courts of Justice. b.Member State Constitutional courts. c.Member State Courts of Appeal. d.Those against whose decisions there is no judicial remedy under national law. e.Those against whose decision there is no judicial remedy under national law. Answers : 1. B 2. C 3. D

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Remedies for breach of EU Law

Contents Remedies for Breach of EU Law o Key Points o Introduction National Procedural Autonomy Standing in UK Law Principle of equivalence Principle of effectiveness Realia : Remedies in Directive 76/207 o Limitation Periods o Interim relief o Restitution o Ex Offcio considerations o Free Standing Action? State Liability o The Francovich Litigation o Factortame III o Sufficiently serious breach? o Implementing Directives o Causation o State Liability and Interpretation o Liability of Municipal Courts Conclusion You be the Judge : Remedies in EU Law
o

Key Readings

Remedies for Breach of EU Law

Key Points
This essay considers the following issues: The standards for EU remedies at municipal level The principles of effectiveness and equivalence. The barriers to effective and equivalent remedies

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The availability of interim relief The remedy of State Liability and conditions for it The liability of municipal judiciaries

Introduction
EU law has sometimes been silent about the remedies that should be provided if those laws are broken. For example, a practice such as discrimination on grounds of sex could be prohibited, but the remedy for such a practice would not be specified. It may not appear obvious why this is the case. It is due to the difficulty in devising a common approach to setting up new remedies. There were pre-existing systems for providing remedies in the member states. Municipal courts would find that there could be problems for individuals trying to enforce their directly effective union law rights. Accordingly, they made requests for preliminary rulings and this gave the Court of Justice the opportunity to answer important questions about the approach of the EU towards how municipal remedies. The case of Rewe-Zentral Finanz eG and Rewe-Zentral AG v Landwirtschaftskammer fr das Saarland Case 33/76 [1976] ECR 1989 involved an action for a refund for a payment made for an illegal customs duty. The limitation period that was imposed by national law had been exceeded by the claimant that sought the refund from the national authorities. Applying the principle of cooperation laid down in article 5 of the Treaty [now 4(3) TEU], the Court of Justice said that it is the national Courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. In the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the Courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature. The Court of Justice said in the case of Evans C-63/01 that: "...in the absence of [Union] rules governing the matter it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions the safeguarding rights which individuals derived from [Union] law, provided, however, that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence)
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and do not rendered virtually impossible or excessively difficult the exercise of rights conferred by [Union] law (the principle of effectiveness)..."

National Procedural Autonomy

The early case law emphasised the principle of national procedural autonomy. This principle means that it is for national authorities to determine the appropriate system of remedies for breaches of directly effective union law rights, so long as they are not any less favourable than those relating to similar domestic claims. There was also a requirement that national procedures should not make it practically impossible to exercise union rights. This suggested that there was going to be a push towards the future development of a Union wide system of remedies. We can consider the procedures that lead to the award of a remedy as well as the idea of the remedy itself. Procedures that lead up to the award of a remedy include pre-trial formalities, such as limitation periods, and the issue of whether individuals have the necessary standing to bring a claim before the courts. Each system of municipal law will be different on these matters. In the United Kingdom, for example, it is not possible for an individual to bring a claim against the administrative authorities without having standing to do so.

Standing in UK Law
In the UK, a claimant must have a "sufficient interest" to give "standing" in relation to the acts of the public authority concerned. This means they must have a direct or personal interest in the activity. An individual cannot challenge a measure which does not affect them personally, just because they disagree with it. However, groups protecting or campaigning for a particular public interest may have standing to challenge a public authority on the basis that they represent the interest of the person directly affected. The test for standing in judicial review proceedings is generally considered to be a wide one, causing few problems for litigants in practice when EU law is concerned.

Principle of equivalence
A rule which discriminates, directly or indirectly, against claimants relying on EU law will be contrary to Union law. In the case C-392/04 i-21 Germany GmbH and C-422/04 Arcor, the Court said that if municipal rules impose an obligation to withdraw an administrative act that is unlawful under municipal law, then the same obligation to withdraw must exist under equivalent conditions in the case of an administrative act which does not comply with Union law.

Principle of effectiveness
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Municipal rules must not render it virtually impossible or excessively difficult to exercise rights that are conferred by EU law. An important historical example of this principle at work can be seen in the litigation that involved the equal treatment Directive 76/207. This early directive on equal treatment for men and women prompted the Court to recognise the principle of effective judicial protection as a general principle of law. Article 6 of Directive 76/207 was followed in other early directives on equal treatment rights. In the case of von Colson and Kaman c-145/83 where the wording of the equal treatment directive article 6 was also in issue, the court said that the remedy was not specified by the equal treatment directive, but if it were in the form of compensation, then it had to be effective and must exceed the travelling expenses of the applicants for the job interview. A key decision on remedies for non discrimination was taken in the Johnston case. In Johnston v. Chief Constable of the Royal Ulster Constabulary C-222/84, [1986] ECR 1651 the claimant, Mrs. Johnston, had been employed as a member of the full-time Royal Ulster Constabulary Reserve on a fixed-term contract. This period in Northern Irish history was one of political unrest, and police work could be very dangerous. Mrs. Johnston challenged Irish legislation that was intended to implement Directive 76/207 on equal treatment. In 1980, the Chief Constable had decided not to offer women new contracts of full-time employment in the Reserve on grounds that a substantial part of the general police duties involved the use of fire-arms. Female police officers had received no firearms training. The Sex Discrimination (Northern Ireland) Order 1976 precluded a claim for sex discrimination in the face of a Certificate from the Secretary of State for Northern Ireland made under that Order, that the allegedly discriminatory action was required for national security. The Certificate constituted irrefutable evidence that the municipal law that grounds existed for derogating from the principle of equal treatment for men and women in employment. Mrs. Johnston was unhappy about the termination of her employment and brought a claim for sex discrimination. At the Industrial Tribunal hearing, it was conceded by Mrs. Johnston that the issuance of the certificate deprived her of remedy by virtue of the provisions of the Sex Discrimination Order. However, she contended that she could rely upon the provisions of the Equal Treatment Directive to support her case. The Court of Justice stressed that an effective judicial remedy must be given for violation of a right protected by union law and that this was a general principle of union law. This general principle of law was common to the constitutional traditions of the member states and was contained in Articles 6 and 13 of the European Convention on human rights. Article 6 of the Equal Treatment Directive provided: "Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to
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them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities." This provision may be relied upon by individuals as against a Member State which has not ensured that it has fully implemented it. If damages are awarded as a remedy in a case, then any delay in the payment of these damages should result in the additional payment of interest on the award. This will compensate the affected party for the time that they have lost the use of the money. The case of M. Helen Marshall v Southampton and South-West Hampshire Area Health Authority C-271/91 (Marshall II) involved the limit set on the award of compensation for discriminatory dismissal. The CoJ had decided in 1986 in Marshall (No I) C-152/84, that the termination of Miss M H Marshall's employment constituted unlawful discrimination on grounds of sex. Miss Marshall claimed compensation under section 65 of the Sex Discrimination Act 1975, which limited an award to 6,250. An industrial tribunal held that the limit rendered the compensation inadequate and in breach of article 6 of 76/207. It assessed her financial loss at 18,405, including 7,710 for interest. The Court of Justice said that in order for the remedy to be effective, then where financial compensation was the method used to restore a situation of equality, it must be adequate in that it must enable the loss and damage actually sustained as a result of the dismissal to be made good in full in accordance with the applicable national rules. The fixing of an upper limit could not constitute proper implementation of article 6, since it limited the amount of compensation a priori to a level which was not necessarily consistent with the requirement of ensuring real equality of opportunity through adequate reparation for the loss and damage sustained as a result of discriminatory dismissal. Full compensation could not leave out of account factors such as the passing of time. The award of interest in accordance with national rules must be regarded as an essential component of compensation for the purposes of restoring real equality of treatment. Realia : Remedies in Directive 76/207 This short exercise contains some extracts from Directive 76/207 and its recast version in the form of Directive 2006/54. Please take a look at the articles in these equal treatment directives. How far do you think that the EU legislation gone toward developing rules for remedies that are available against sex discrimination? Extract from Directive 76/207:

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"Article 6 Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities. " Extract from Directive 2006/54: "HORIZONTAL PROVISIONS CHAPTER 1 Remedies and enforcement Section 1 Remedies Article 17 Defence of rights 1. Member States shall ensure that, after possible recourse to other competent authorities including where they deem it appropriate conciliation procedures, judicial procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended. 2. Member States shall ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his/her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive. 3. Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equal treatment. Article 18 Compensation or reparation Member States shall introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation as the Member States so determine for the loss and damage sustained by a person injured as a result of discrimination on grounds of sex, in a way which is dissuasive and proportionate to the
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damage suffered. Such compensation or reparation may not be restricted by the fixing of a prior upper limit, except in cases where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of this Directive is the refusal to take his/her job application into consideration. Section 2 Burden of proof Article 19 Burden of proof 1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs. 3. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case. 4. Paragraphs 1, 2 and 3 shall also apply to: (a) the situations covered by Article 141 of the Treaty and, insofar as discrimination based on sex is concerned, by Directives 92/85/EEC and 96/34/EC; (b) any civil or administrative procedure concerning the public or private sector which provides for means of redress under national law pursuant to the measures referred to in (a) with the exception of out-of-court procedures of a voluntary nature or provided for in national law. 5. This Article shall not apply to criminal procedures, unless otherwise provided by the Member States." Answer The legislation that is now in force in the form of Directive 2006/54 contains much more developed provisions on remedies and enforcement than the earlier legislation. It includes provisions on sanctions which build on the Court's decision in the case of Marshall II. It also includes rules on the burden of proof which first appeared in Directive 97/80(on the burden of proof in cases of discrimination based on sex). As the preamble to that directive acknowledged, the case law of the Court had established that the rules on the burden of proof must be adapted when there is a prima facie case of discrimination and that, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought.

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EU Law Remedies

Limitation Periods
These are a way that national law can obstruct the access to remedies if there is a delay on the part of the claimant. Limitation periods vary in length. If a claim is made after the limitation period has run out then a claimant cannot bring an action. In the case of Theresa Emmott v. Minister for Social Welfare and Attorney General [1991] ECR I-4269 C-208/90. a Irish woman, Ms Emmott, was entitled to disability benefit in Ireland because of her poor eyesight. The disability benefit started to be paid to her in December 1983 and continued until July 1988, when she moved to England. Under the Irish rules she was entitled to a lower amount than a man would have been entitled to in similar circumstances. This had become unlawful discrimination under Directive 79/7 (the Social Security: equal treatment Directive) as from 23rd December 1984, by which date all Member States were meant to have transposed that Directive into national legislation. She began proceedings for judicial review in the Irish Court in July 1988. The Irish government argued that this was outside the three month limitation period in the provisions of the Irish Rules of the Superior Courts 1986.

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It was clear that the directive had not been properly implemented it in Ireland. This made it difficult for individuals to ascertain their rights correctly. The Court of Justice rejected the use of the limitation period as a way of denying her a remedy under these circumstances. It held that until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual' s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive, and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time. The implications of Emmott were quite serious because Member States would be under considerable pressure to implement legislation correctly, and if for some reason they were not able to do so, it could open up the possibility of a great deal of litigation, against which the use of limitation periods would not provide a safeguard.

Interim relief
Interim relief is preliminary relief, such as an injunction, granted by the court to preserve the status quo pending a trial outcome. In EU law, it is often a remedy that is associated with the Use of the preliminary ruling procedure, which takes time to determine the correct interpretation or validity of a contested Union law. While proceedings are ongoing, the parties to the case could be suffering losses or other disadvantages. The Factortame litigation represents an important high water mark in the application of the principle of effectiveness of EU remedies. Initially, the proceedings involved a request for interim relief in the form of an injunction by Factortame. The origin of this case was a decision by the Union to adopt the Common Fisheries Policy in 1970. In order to implement this policy, limits were laid down on the total number of fish of various species that could be caught by Member States. In 1980 the EU concluded a fisheries agreement with Spain that allowed it to have limited rights to fish in the waters of the Member States. In 1983, maximum quotas for catches from each Member State were laid down. From 1980 Spanish fishermen began to operate in the UK fishing market by taking advantage of the weak controls over fishing vessel registration in the Merchant Shipping Act 1984. The act allowed UK registered companies to be registered as the owners of fishing vessels, although the rules prohibited ownership of vessels by non-UK nationals. One of the beneficiaries of the 1984 Act was Factortame Limited that was owned by some Spanish residents. The company, along with others whose directors and shareholders were mostly Spanish, re-registered 53 vessels which had formerly flown the Spanish flag as British fishing vessels under the 1894 Act. They also acquired 42 vessels for use in the UK fishing zone. Most of these vessels landed their catches in Spain, but as the fish were caught in UK waters, and so they counted against the UK fishing quota in a practice that was known as "quota hopping".
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To prevent this from happening, the UK government passed the Merchant Shipping Act 1988, that set three requirements for registration as a UK fishing vessel. They were: (i) the vessel must be British-owned; (ii) the vessel had to be managed and its operations had to be directed and controlled from the UK; and (iii) any charterer, manager or operator had to be a qualified person or company. A "qualified person or company" was a person who was a British citizen resident and domiciled in the UK or a company which was incorporated in the UK and had its principal place of business there having at least 75% of its shares owned by, and at 75% of its directors being, "qualified persons". From 31 March 1989, fishing vessel registrations under the 1894 Act would lapse and the owners would be required to re-register under the 1988 Act. None of Factortame's vessels would be able to satisfy the new requirements, and so they brought an action for judicial review in the Divisional Court. This review action was then appealed against by the Secretary of State and the case eventually reached the House of Lords (in Factortame I where the Lords initially refused to grant interim relief). Factortame challenged the legislation in the form of the Merchant Shipping Act 1988, claiming that the new registration procedure in the UK was discriminatory on grounds of nationality as well as amounting to breaches of the freedom to supply services and freedom of establishment, that were both principles of Union law. They applied for an interim injunction to prevent the UK Government from enforcing the Statute. Under the UK law there was no such remedy available against an act of parliament. In a preliminary ruling R v Secretary of State for Transport, ex parte Factortame Ltd Case C-213/89 [1990] ECR I-2433, the Court of Justice ruled that even the doctrine of parliamentary sovereignty could not prevent English court from providing interim relief. It said that: "...the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule. The House of Lords in Factortame Ltd and others v Secretary of State for Transport (No 2) [1991] 1 All ER 70 granted an injunction suspending the operation of the 1988 Act. In deciding to do so, two factors influenced the House of Lords. First, the likelihood that Factortame would suffer hardship and loss if they did not do so. Second, the prospects of Factortame succeeding in the full trial once the CoJ had given its ruling on the compatibility of the 1988 Act with EU law.

Restitution
This is act of making good or compensating for loss, damage, or injury; indemnification to a person who has been wronged by a breach of the law.
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In Metallgesellschaft Ltd and Others (C-397/98), Hoechst AG, Hoechst UK Ltd (C410/98)and Commissioners of Inland Revenue there was a dispute about a claim for repayment of tax paid in advance that was paid in breach of EU law and the interest that this sum would have earned. Subsidiaries of overseas companies were required to pay tax in advance on the dividends that they paid to the parent company. Subsidiaries of national companies could opt not to pay this tax at all. Article 52 of the Treaty (now Article 49 TFEU on the freedom of establishment) required that the resident subsidiaries and their non-resident parent companies should have an effective legal remedy in order to obtain reimbursement or reparation of the financial loss which they have sustained and from which the authorities of the Member State concerned have benefited as a result of the advance payment of tax by the subsidiaries. In an action for restitution the principal sum due is the amount of interest which would have been generated by the sum, use of which was lost as a result of the premature levy of the tax. The award of interest represented the reimbursement of that which was improperly paid and would appear to be essential in restoring the equal treatment guaranteed by Article 52 of the Treaty.

Ex Offcio considerations
"Ex officio" means holding a position or membership due to the power or influence of one's office, and not by election or appointment. In the legal area under consideration here it refers to the importance of EU law in a dispute where it could have a role to play in resolving it. The joined case Van der Weerd Joined Cases C-222/05 to C-225/05, involved the question, under Union law, there is an obligation to take into account ( because of its important legal status ) ex officio provisions of a Directive even in the event the parties to the case did not raise any arguments based on that Directive. In 2001, the animal disease known as foot-and-mouth broke out in the Netherlands. Farmers whose animals were slaughtered including Van der Weerd, lodged objections to those decisions. The farmers argued that the Director of the Dutch Inspection Service was not entitled to take the "destruction" decisions because Directive 85/511 (on measures to control foot and mouth disease), was not followed. Dutch national rules of procedure in administrative proceedings, provide for a court to give its ruling only on the basis of the issues that are put before it. Only in cases involving the application of rules of public policy were administrative courts required to analyse legal issues ex officio. The Dutch Tribunal was uncertain whether or not Union law required it to take into consideration arguments based on the Directive. The Court of Justice held that because the provisions of Directive 85/511 did not occupy a similar position within the Union legal order to national rules of public policy, which had to be raised of their own motion by national courts, the application of the principle of equivalence did not mean, as regards the present cases, that the national court was obliged to conduct of its own motion
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an examination of the validity of the administrative measures in question by having regard to criteria based on Directive 85/511. As regards the principle of effectiveness, the Court said that it was necessary to take into consideration, where relevant, the principles which lay at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings, as well as the obligation of the court to keep to the subject-matter of the dispute and to base its decision on the facts put before it. The Court ruled that the principle of effectiveness did not impose a duty on national courts to raise a plea based on a Union provision of their own motion, irrespective of the importance of that provision to the Union legal order, where the parties were given a genuine opportunity to raise a plea based on Union law before the municipal court.

Free Standing Action?

The case of Unibet (London) Ltd v Justitiekanslern (C-432/05) [2007] E.C.R. I-2271 involved the question whether there was a free standing action to review the compatibility of municipal law with EU law as a corollary to the principle of effectiveness. The matter of interim relief was also raised. Unibet Ltd had bought advertising space in a number of different Swedish media with a view to promoting its gaming services on the internet. In accordance with the Law on Lotteries, the Swedish State took a number of measures, including obtaining injunctions and commencing criminal proceedings, against those media which had agreed to provide Unibet with advertising space. No administrative action or criminal proceedings were brought against Unibet. Unibet sought, inter alia, a declaration that its Union law rights were being infringed, as well as interim relief against the operation of the Swedish gaming law. The Swedish supreme court made a request for a preliminary ruling asking whether Union law required a free standing right of review over national law, and whether interim relief was available against the national law. The Court of Justice reiterated that the principle of effective judicial protection was a general principle of Union law stemming from the constitutional traditions common to the Member States, which had been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It also referred to Article 47 of the Charter of Fundamental Rights that provides a right to an effective remedy and a fair trial. The Court said that Swedish law did not prevent Unibet from disputing the compatibility of national legislation, as there were various indirect legal remedies for that purpose. For example, Unibet may obtain an examination of whether the Law on Lotteries is compatible with Union law in the context of a claim for damages before the ordinary courts. Where appropriate, the competent court would be required to disapply the
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provisions of that law that were considered to be in conflict with Union law. Further, if Unibet applied to the Swedish Government for an exception to the prohibition on the promotion of its services in Sweden, any decision rejecting that application could be the subject of judicial review proceedings, in which Unibet would be able to argue that the provisions of the Law on Lotteries were incompatible with Union law. Therefore on the first point regarding the creation of a free standing right to challenge the law the Court of Justice regarded it as unnecessary. On the question regarding the availability of interim relief in the circumstances, it was emphasised that a court must be in a position to grant this in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Union law. Where it is uncertain under municipal law, applied in accordance with the requirements of Union law, whether an action to safeguard respect for an individual's rights under Union law is admissible, the principle of effective judicial protection requires the municipal court to be able, none the less, at that stage, to grant the interim relief necessary to ensure those rights are respected. The principle of effective judicial protection does not require it to be possible in the legal order of a Member State to obtain interim relief from the competent municipal court in the context of an application that is inadmissible under the law of that Member State, provided that Union law, does not call into question that inadmissibility. The Court considers that the principle of effective judicial protection may, exceptionally, require the creation of new national remedies. The obligation is reinforced by Article 19(1) TEU: "... Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law."

State Liability
The Francovich Litigation
The case of Francovich and Bonifaci v Italy: C-6/90 and C-9/90 [1991] ECR I-5357 is one that is of great significance in the jurisprudence of the Court of Justice. Along with the case of Factortame, it represents a high water mark of the Court's intervention in the establishment of an EU system of remedies. The case held that a Member State will be liable to pay compensation for the non-implementation of a directive in certain circumstances. The facts involved the non implementation, by Italy, of Directive 80/987. This Directive set out to guarantee payment of outstanding claims to employees, in the event of the insolvency of their employer. It required Member States to establish an institution to guarantee payment of such claims. It also laid down procedures which applied when a cross-border employer became insolvent.

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The Court of Justice said that the EEC Treaty [now the Union treaties] sets out its own legal system that creates rights and obligations for individuals and the Member States. It also has the feature of primacy over inconsistent municipal law. The full effect of this of Union rules would be weakened if individuals were unable to obtain redress when their rights are infringed. The possibility of obtaining redress for a Member State is indispensable where the full effectiveness of Union rules is subject to prior action on the part of the state and where, as a result, the absence of such action means individuals cannot enforce before municipal courts the rights conferred on them by Union law. The principle by which a state must be liable for loss caused to individuals as a result of its own breach of union law is inherent in the system of the Treaty. A further basis for liability is the requirements of loyal cooperation in Article 4(3) TEU. In the case of a Member State which fails to implement a directive correctly Union law requires that there should be a right to reparation where three conditions are met: first, the result prescribed by the directive should entail the grant of rights to individuals; secondly, that it should be possible to identify the content of those rights on the basis of the provisions of the directive; and thirdly, that there should be a causal link between the breach of the State' s obligation and the loss and damage suffered by the injured parties. In the absence of any Union legislation, it is in accordance with the rules of municipal law on liability that the State must make reparation for the consequences of the loss and damage caused. Nevertheless, the relevant substantive and procedural conditions laid down by the municipal law of the Member States must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it virtually impossible or excessively difficult to obtain reparation. The right of a Member State to which a Directive is addressed to choose among several possible means of achieving the result required by it does not preclude the possibility for individuals of enforcing before the national courts rights whose content can be determined sufficiently precisely on the basis of the provisions of the directive alone. In the facts of the case a guarantee institution had to be established but the directive was not clear about the nature of this institution and so the Italian authorities could not be held liable.

Factortame III
The origins of the Factortame litigation have already been considered before in the section on interim relief. The case returned to the Court of Justice again after the Francovich decision. A number of questions were unanswered following the Francovich decision. These included questions like: does a state liability action only apply to unimplemented directives? And does it only apply in situations where there is no direct effect? In Joined Cases C-46/93 & C-48/93 Brasserie du Pcheur and Factortame III [1996] ECR I1029 the Court was asked for the conditions under which a Member State may incur
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liability for damage caused to individuals by breaches of Union law attributable to that State. The Court of Justice held that the conditions for state liability with the same as for establishing the liability of union institutions under Article 340 TFEU. in relation to legislate of measures this takes into account the difficulties in the application or interpretation of texts and the margin of discretion is available to the author of the act in question. With regard to legislate of measures involving choices of economic policy, the institutions have a wide discretion available to them. This is because exercise of legislative function must not be offended by the prospect of actions for damages wherever the general interest of the Union requires legislative measures to be taken that could adversely affect individual interests. Secondly in a legislative context where discretion is involved, then there will be no liability unless the institution concerned has " manifestly and gravely disregarded the limits on the exercise of its power..." On the other hand, municipal legislatures may not have a wide discretion, when it comes to implementing Union law. This is so, for instance, where, as in the Francovich case, [Article 288 TFEU] places the member state under obligation to take, within a given period, all measures needed in order to achieve the result required by a Directive. In such a case, the fact that it is for the national legislation to take the necessary measures has no bearing on the member states liability for failing to transfer the Directive. The court said that the UK had a wide discretion. The Merchant Shipping Act 1988 was concerned with registration at fishing vessels, the field which, in view of the development of Union law, fell within the jurisdiction of the Member States and, secondly, with regulating fishing, a sector in which implementation of the common fisheries policy leaves a margin of discretion to the Member States. The United Kingdom legislature was faced with a situation involving choices comparable to those made by the Union institutions when they adopt legislative measures pursuant to Union policy. In such circumstances, Union law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties. The court found that the substantive rights of the applicants were breached. The second issue, concerning the seriousness of the breach involved consideration of a number of factors: "56. The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or [Union] authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a [Union] institution may have contributed towards the
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omission. And the adoption or retention of national measures or practices contrary to [Union] law." By way of example the court said that a breach of Union law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established, or a preliminary ruling or settled case law of the court on the matter from which it is clear that the conduct in question constituted an infringement. The causal nature of the damage must be established on the basis of municipal rules on liability, provided that the conditions for reparation of loss and damage laid down by municipal law must not be less favourable than those relating to similar domestic claims and must not be such as in practice to make it impossible or excessively difficult to obtain reparation. As far as the measure of damages to paid was concerned, then in the absence of any Union rules on the matter, it is for the domestic legal system of each member state to set the criteria for determining the extent of reparation. However, those criteria must not be less favourable than those applied to similar claims based on domestic law and must not be such as in practice to make it impossible or excessively difficult to obtain reparation.

Sufficiently serious breach?

In Factortame III the Court of Justice stated that " the decisive test for finding that a breach of [Union] law is sufficiently serious is whether the Member State or the [Union] institution concerned manifestly and gravely disregarded the limits on its discretion." The test suggests that in the case of a Member State or Union institution that is exercising its discretion, something more than mere excess of power is required. Legislation that is clearly contrary to established case law is an example of a manifest breach. To offer some guidance as to how this test should be applied, the Court in Factortame III, provided a non-exhaustive list of factors to be considered in each individual case. These include the clarity and precision of the rule breached; the measure of discretion left by that rule to national authorities; whether the infringement or damage was intentional or not; and, whether the Member State adopted or retained measures that were contrary to [Union] law. The post Factortame III case law has provided a refinement of these factors and how they should be applied. The case of R v HM Treasury, ex parte British Telecommunications C-92/93 [1996] ECR I-1631, coming shortly after Factortame, involved consideration of whether an incorrect implementation of a directive was a sufficiently serious breach of EU law. The facts concerned a Directive regulating the procurement procedures of entities operating in the telecommunications sector. The UK had implemented this Directive by way of the Utilities Supply and Works Contracts Regulations 1992. However, in doing so, it had determined which services were to be excluded from the scope of the regime.
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This was contrary to the Directive, under which the power to make that determination was vested in the contracting entities themselves. BT was one of those entities in question. The Court of Justice determined that there was no sufficiently serious breach. said that the article of the directive in issue was in precisely worded and was recently capable of bearing the construction that had been given to it by the UK in good faith. This interpretation was also shared by other Member States, and was not manifestly contrary to the wording of the Directive or to the objective pursued by it. There was also no guidance available the UK from case-law of the Court as to the interpretation of the provision at issue, nor did the Commission raise the matter when the 1992 Regulations were adopted. It followed from this that the Member State, when transposing the Directive into national law cannot be regarded as having committed a sufficiently serious breach of Union law of the kind intended by the Court in its judgment in Factortame. The case of Denkavit International v Bundesamt fur Ernabring (Case C-283, 291 & 292/94) also involved the incorrect transposition of a directive. The CoJ found that the breach was not sufficiently serious to lead to liability on the part of Germany and its decision was influenced by the fact that most other Member States had adopted a similar approach to Germany. The case of Hedley Lomas C-5/94 [1996] ECR I-2553 forms an interesting counterpoint to the British Telecommunications case. It was held here that the mere fact of infringement of EU law may be enough to establish the existence of a sufficiently serious breach. The facts involved MAFF (the Ministry of Agriculture, Fisheries and Foods) which refused to grant licenses to enable Hedley Lomas to export live sheep to Spain, because it considered that Spain had not properly implemented an EU directive dealing with the pre slaughter condition of certain animals. The Commission investigated the allegations but found no breach by Spain. It informed the UK that its export ban infringed Article 35 TFEU and was not justified under Article 36 TFEU. When proceedings were brought in the United Kingdom courts, an Article 267 preliminary reference was made. The Court held that where a Member State does not have to make legislative choices or has only reduced discretion, the mere fact of infringement of EU law may be enough to establish a sufficiently serious breach. The case of Brinkmann Tabakfabriken v Skatteministeriet C-319/96 [1998] ECR I-5255 concerned the incorrect classification of a tobacco product manufactured by Brinkmann by the Danish authorities under Directive 79/32 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, as amended.

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Certain important Articles of the relevant Directive, contained definitions of `cigarettes' and `smoking tobacco' that were improperly transposed, because no definitions had been adopted into Danish law. The relevant Act only empowered the Minister to enact secondary legislation, but the power had not been exercised. The Court said that the interpretation given to the definitions in the Directive, neither of which corresponded exactly to Brinkmanns' product, by the Danish authorities was not manifestly contrary to the wording of the Directive, nor to its purpose. The Court of Justice admitted that non-transposition of a Directive, per se amounts to a serious breach of Union law, but as the Danish authorities had applied the definitions of the Directive, there was no direct causal connection between this breach and Brinkmann's damage. The Court's assessment of a possible serious breach of Union law is in keeping with previous case law in the BT case and Denkavit in holding that a Member State is not liable for incorrect interpretations of Union law, where the provision in question did not clearly rule out such a reading, taking into account that also other Member States and the Commission had given the same interpretation. The case of C-150/99, Sweden v Stockholm Lindopark AB [2001] ECR I-493 concerned the incorrect transposition by Sweden of the Sixth VAT Directive on Tax. Article 13 of that Directive provided for exemptions from the general principle under Article 2, by which every supply of services effected for consideration by a taxable person was subject to VAT. But the exemption given in relation to the supply of sports facilities only extended to their supply by non-profit-making organisations. Article 13 therefore precluded a general exemption for the supply of sports facilities, such as existed under Swedish law. The Claimant ran a golf course and complained that the general exemption had precluded it from deducting VAT on the goods and services used for the running of the golf course. The question arose whether the implementation of a general exemption, contrary to Article 13, was sufficiently serious to render Sweden liable in damages. The Court held that it was. The wording of the Sixth Directive was so clear that Sweden had little or no choice in how to implement it. In those circumstances, following the decision in Hedley Lomas, the mere infringement did constitute a sufficiently serious breach.

Implementing Directives
It was held in the case of Francovich that the non implementation of the directive could give grounds for a state liability claim. In the case of Dillenkofer and Others Joined Cases C-178, 179 and 188-190/94 [1996] ECR I-4845, Germany had failed to implement the package holidays directive 90/314 by the correct deadline. This granted to package travellers rights guaranteeing a refund of money paid over and their repatriation in the event of the organizer' s insolvency. This left a number of claimants unable to obtain reimbursement following the insolvency of the tour operators from whom they had purchased holidays.

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The non implementation was regarded as being a sufficiently serious breach when Germany had no margin of discretion over the implementation of the directive. The CoJ held that : `Failure to take any measure to transpose a Directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of [Union] law and gives rise to a right of reparation for individuals suffering injury if the result prescribed by the Directive entails the grant to individuals of rights whose contents are identifiable and a causal link exists between the breach of the State's obligation and the loss and damage suffered.' In Rechberger and Others v Austria C-140/97 [1999] ECR I-3499 Austria had incorrectly transposed the Package Travel Directive by applying its implementing Act to package tours taking place after 1 May 1995. The Directive, including its consumer guarantees had to apply to contracts made after 1 January 1995 at the end of the transposition period. The incorrect implementation by Austria constituted a sufficiently serious breach of Union law, according to the Court. Dealing with the substantial correctness of the Austrian transposition measure, the Court stressed that a directive will only be transposed properly if the national law does in its effects ascertain the objectives prescribed in the directive. Liability in the case is based on the idea of guarantee instead of responsibility for wrongdoing. Liability is strict, the Brasserie formula will not be applied. There is no room for examining whether the State was in error about the appropriate measures that should be taken to reach the prescribed objectives or whether the State was in error about the exact scope and content of these objectives. After the Rechberger judgment it can be said that there are two different lines of jurisdiction concerning state liability for breach of Union Law. One was developed in Factortame III and is based on the idea of a sanction for severe wrongdoing, and the other has been started with Francovich and continued in Dillenkofer, and is based on the idea of guarantee. It is worth noting that an important distinguishing fact between the BT case and Rechberger or Dillenkofer is that in the BT case, Directive 90/531 did not confer clearly defined rights on the claimant. We have seen from the two previous cases that the non implementation of a directive is a sufficiently serious breach of EU law. In cases of deficient implementation such as in the BT case it depends on the Circumstances whether the breach is sufficiently serious. This is also true in the next case. In the case of Carol Marilyn Robins and Others v Secretary of State for Work and Pensions C-278/05 [2007] E.C.R. I-1053 concerned the implementation of the Directive 80/987 on the guarantee payment of outstanding claims to employees, in the event of the insolvency of their employer. this has also been the none in issue in the Francovich case.

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She, along with a number of other colleagues brought an action against the Secretary of State after their employer had gone into liquidation. Article 8 of the Directive provided that : Member States shall ensure that the necessary measures are taken to protect the interests of employees and of persons having already left the employers undertaking or business at the date of the onset of the employers insolvency in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors benefits, under supplementary company or inter-company pension schemes outside the national statutory social security schemes. Under the legal framework provided by the UK which aims at implementing the Directive (Employment Rights Act 1996 and Pension Schemes Act 1993), Mrs. Robins would end up with only 20% of her entitlement, and other claimants with sometimes less than half of their entitlement. The Court of Justice was referred three questions. The first was whether the directive made it a requirement for the state to fully fund any deficiencies in these pension fund holders accrued rights? The Court held that the directive does no more than prescribe in general terms the adoption of the measures necessary to protect the interests of the persons concerned and thus gives the member States considerable latitude which excludes an obligation to guarantee in full. It said that on a proper construction of Article 8 of the Directive, where the employer is insolvent and the assets of the supplementary company or inter-company pension schemes are insufficient, accrued pension rights need not necessarily be funded by the Member States themselves or be funded in full. The second question concerned the extent to which the scheme as implemented by the Government met the standard that was set out in the Directive or fell below it. The Court considered that where the domestic provisions could, in some cases, lead to a guarantee of benefits being limited to only 20% or 49% of the benefits to which an employee was entitled, that could not be considered to fall within the definition of the word protect used in Article 8 of the Directive and fell below the required standards. The third question concerned state liability and whether the breach here was enough to warrant the payment of damages? The Court said that, following its previous case law on state liability in Factortame , that for a Member State to incur liability for damage caused to individuals by a breach of Union law it is necessary that the rule of law infringed should be intended to confer rights on individuals; the breach should be sufficiently serious and there should be a direct causal link between the breach of the obligation incumbent on the State and the damage sustained by the injured parties The seriousness of the breach depended on the amount of discretion left to the member state. This was based on the degree of clarity and precision of the rule infringed. The liability of a Member State by reason of incorrect transposition of that provision is
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conditional on a finding of manifest and serious disregard by that State for the limits set on its discretion. This was left for the national court to decide. The Court said that neither Article 8 of the Directive nor any other provision in it contained anything that made it possible to establish with any precision the minimum level required in order to protect entitlement to benefits. The national court may also take into consideration a commission report that was not published in the Official Journal, concerning the transposition of the Directive by the Member States, which was cited to the Court and in which the Commission had then concluded that the UK had appeared to meet the requirements of article 8 of the directive.

Causation
There has been very little case law that deals with the test for causation in actions for state liability. This could be explained the lack of preliminary questions asked on the matter by the municipal courts. The preliminary rulings that have been delivered on the conditions for state liability, deal with the sufficiently serious breach requirement and the rules that govern its application. There has been a reliance on municipal standards for causation. The reliance on municipal law in matters of causation seems to have discouraged any attempt to try to set a minimum requirement of effectiveness that would serve as the basis for a level of Union harmonisation.

State Liability and Interpretation

Much of Union legislation, as well as many decisions of the Court of Justice, suffers from language that is not absolutely clear. A survey of the Court of Justice's case law would reveal the Court's reluctance to revise overtly its earlier judgments, amplifying the lack of clarity. For example, in Dillenkofer and Others C-178, 179 and 188-190/94, the Court held that 'failure [of states] to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of [Union] law', and gives rise to Francovich liability. Reading this language implies that a Member State might avoid the imposition of Francovich liability if it takes at least some measures directed towards transposing the directive on time. A Member State that finds it complicated or expensive to implement a directive in a timely manner might read the Court's language as allowing it to take some measures towards the implementation and so avoid liability for damages, even if the full implementation may still exceed the deadline. The language ambiguity should not serve as an excuse for states to avoid implementing a directive, but it is clear that in the process of the making of a decision on how to go about such an often very costly enterprise it might, among other reasons, cause a delay.

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In an entity with such a diversity of rich legal traditions and languages that Europe is, it is difficult to write complex texts in such a way as to ensure even a similar perception and understanding by all its peoples. There are also the possible issues that can arise with poor translation . The damages paid by the Member States in such cases are ultimately paid from by their citizens' taxes. This fact might not be obvious to many taxpayers, as the economic strain from this liability on an average citizen is small. To the extent that some mistakes are made in this process, it is not clear how a punishment can improve it and bring about a more 'correct' interpretation of Union law.

Liability of Municipal Courts

From previous cases we have seen that acts of the legislature and also acts of the executive have given rise to claims of state liability. The liability of municipal courts is another aspect of municipal law that can give rise to problems where a court incorrectly applies Union law in a case before it. Article 267 TFEU, the preliminary reference procedure, requires court or tribunals of final instance to make a request for a preliminary ruling if they are in doubt as to the interpretation or validity of EU law. This is to ensure that EU law is correctly enforced in the member states. If a municipal court fails to use this procedure when it should do so can run into problems if it makes an incorrect decision that breaches EU law. The case of Kbler v Republic of Austria C-224/01 was the first case that dealt with this issue and it explained the liability for breach of Union law by courts of final instance. The facts concerned the interpretation of Austrian employment law and the application of EU rules towards it. University professors, when they completed a term of 15 years service and had also been receiving a length-of-service increment for four years, were then to eligible to receive with a special length-of-service increment. It was a valuable benefit. Mr Kbler had traveled from Germany to Austria to take up work as professor there. He had not worked in Austria for the full 15 years, but expected his service in other European Universities to count in adding up to this 15 year period. His application for the increment was turned down by the Austrian authorities, however. A case ensued before the Austrian Supreme Administrative Court, the "Verwaltungsgerichtshof", for the amount claimed. Before the case was heard, the Verwaltungsgerichtshof had made a request for a preliminary ruling to the Court of Justice, but decided to withdraw it after another judgment of the Court of Justice on a similar issue was given. It then dismissed Mr Kbler's application on the ground that it interpreted the special length-of-service increment as a loyalty bonus which objectively justified a derogation from the Union law provisions on freedom of movement for workers.

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Mr Kbler maintained that the judgment of the Verwaltungsgerichtshof infringed directly applicable provisions of Union law, as interpreted by the Court of Justice in the judgments in which it held that a special length-of-service increment did not constitute a loyalty bonus. Questions were then raised in an action for a declaration of liability brought by Mr Kbler against the alleged breach Union law by the judgment of the Supreme Administrative Court, The Regional Civil Court in Vienna referred to the Court of Justice for a preliminary ruling a question on the interpretation of the judgment in Factortame III and C-54/96 Dorsch Consult [1997] ECR I-4961, Article 45 TFEU and rules on the free movement of workers. The Republic of Austria argued that the judgment of the Verwaltungsgerichtshof did not infringe directly applicable Union law. The decision of a court adjudicating at last instance such as the Verwaltungsgerichtshof also, it argued, could not found an obligation to afford reparation as against the State. In its response to these the Court of Justice held that the principle of liability on the part of a Member State was inherent in the system of the Treaty. The principle applies to any case in which a Member State breaches Union law, whichever is the authority of the Member State whose act or omission was responsible for the breach In international law, a State that incurs liability for breach of an international commitment is viewed as a single entity, irrespective of whether the breach which gave rise to the damage is attributable to the legislature, the judiciary or the executive. The principle applies in the Union legal order since all State authorities, including the legislature, are bound in performing their tasks to comply with the rules laid down by Union law which directly govern the situation of individual. In the light of the essential role played by the judiciary in the protection of the rights derived by individuals, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were prevented from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Union law attributable to a decision of a final instance court. Since an infringement of those rights by a decision of a court of final instance cannot thereafter normally be corrected, individuals cannot be deprived of the possibility of rendering the State liable in order in that way to obtain legal protection of their rights. Res judicata is a latin term that means "the thing has been decided". The principle being that a final judgment of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action. On this issue of "res judicata" the Court made some interesting and rather controversial statements. It said that, it should be borne in mind that recognition of the principle of state liability for a decision of a court adjudicating at last instance does not in itself have the consequence of calling in
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question that decision as res judicata. Proceedings seeking to render the State liable do not have the same purpose and do not necessarily involve the same parties as the proceedings resulting in the decision which has acquired the status of res judicata. The applicant in an action to establish the liability of the State will, if successful, secure an order against it for reparation of the damage incurred but not necessarily a declaration invalidating the status of res judicata of the judicial decision which was responsible for the damage. The principle of state liability inherent in the Union legal order requires such reparation, but not revision of the judicial decision which was responsible for the damage. If there is no Union law on the matter, it is for the internal legal order of each Member State to designate the competent courts and lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from Union law. Regarding the possible threat to the authority of the judiciary in the final instance court, the Court of Justice said that owing to the fact that its final decisions could by implication be called in question in proceedings in which the State may be rendered liable, the existence of a right of action that affords, under certain conditions, reparation of the injurious effects of an incorrect judicial decision could also be regarded as enhancing the quality of a legal system and the authority of the judiciary. Procedures had to be available to ensure that state liability claims could be made against courts of final instance. The design of these procedures was up to the Member States and they had to designate the competent courts and lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from Union law. Referring to fundamental rights in the European Convention on Human Rights Article 41 provides that "If the Court of Human Rights finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party." This was argued as amounting to a useful supporting point. The court then tackled the issue of the conditions for state liability. It repeated the established conditions that the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation incumbent on the State and the loss or damage sustained by the injured parties. Central to the decision of liability in the case was the seriousness of the breach. In the context of this case, concerning courts of final instance, regard must be had to the specific nature of the judicial function and to the legitimate requirements of legal certainty.

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State liability for an infringement of Union law here can be incurred only in the exceptional case where the court has manifestly infringed the applicable law. The factors to be taken into account include the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Union institution and noncompliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 267 TFEU. It is on the basis of rules of municipal law on liability that the State must make reparation for the consequences of the loss and damage caused, with the proviso that the conditions for reparation of loss and damage laid down by municipal law must not be less favourable than those relating to similar domestic claims and must not be so framed as to make it in practice impossible or excessively difficult to obtain reparation Finally as regards the issue of discrimination in the increment, the Court decided that it amounted to an obstacle to freedom of movement for workers which could not be justified by the any pressing public-interest reason such as to keep the loyalty of highly skilled professorial staff. The Court decided that facts did not display the requisite manifest character for liability under Union law to be incurred by a Member State for a decision of one of its courts adjudicating at last instance. In the case of Traghetti del Mediterraneo SpA (In Liquidation) v Italy (C-173/03) [2006] E.C.R. I-5177, the Court held that Union law precludes national law that limits state liability only to cases of intentional fault and serious misconduct on the part of the court of last instance. The highest Italian Civil court, the Court of Cassation, had ruled in a dispute between ferry operators that a subsidy granted to a ferry operator did not violate Union law on state aids as it considered that in deciding this it had correctly followed Court of Justice case law. The ferry operator that was bringing the proceedings, Traghetti, had gone into liquidation due to its financial troubles. Its administrator brought an action for damages against the decision of the Court of Cassation arguing that it had misapplied Union law. The domestic provisions of public liability law allowed the payment of damages only when the judge was guilty of intentional fault and judicial misconduct in the exercise of his functions, and cases of denial of justice. The imposition of liability was precluded for judicial errors committed in the interpretation of the law and the assessment of facts and evidence. The Court of Justice ruled that Union law precludes the existence of two types of national rules that limit State liability: (1) rules that exclude liability for damages due to an infringement of Union law that arises out of an interpretation of legal provisions or an assessment of facts or evidence carried out by a court adjudicating at last instance, or (2) those limiting liability solely to cases of intentional fault and serious misconduct on the
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part of the court, if such a limitation were to lead to exclusion of the liability of the Member State in other cases where a manifest infringement of the applicable law was committed. Reflecting on the decision in the case, it seems likely that proceedings before national courts of last instance will be slowed, and the number of preliminary references sent to the Court of Justice will increase, because municipal judges will fear incurring liability for having missed a necessary preliminary reference. Having considered the case law on the liability of the judiciary it can be seen how important national procedural rules are in determining the potential for success of a liability action. The next case raised the question of the legal status of the preliminary reference procedure in the national constitution. The case of Transportes Urbanos y Servicios Generales SAL v Administracin del Estado C-118/08 involved a dispute between Transportes Urbanos and the Spanish Administration about tax law. Under Spanish law, law 37/1992 provided limits for the calculation of VAT, which must be recorded in a self assessment. Nevertheless, law 58/2003 stated that a person has the right to request that his self assessment be rectified and any overpayments refunded. This was subject to a four year limitation period. In this case Transportes had filed self assessments for the tax years 1999 and 2000 in accordance with law 37/1992, but had not taken advantage of law 58/2003. They then tried to claim overpaid tax back from the Spanish authorities. Transportes claimed that law 37/1992, was incompatible with the Sixth Council Directive 77/388. It did so after the Court of Justice had found that the limits on the right to deduct VAT laid down in Spanish law were incompatible with EC secondary law on VAT (in C-204/03 Commission v Spain). The Spanish Administration said that Transportes had to exhaust all other administrative and judicial remedies first. They also said that the action was time barred. Transportes had not submitted a claim for rectification during the four year period and so any attempt to claim that there was a direct causal link between the breach and the loss was not proven. This finding was based on Spanish Supreme Court case-law according to which actions for damages against the State in respect of a breach of EU law are subject to a rule requiring the prior exhaustion of administrative and judicial remedies against a challenged administrative measure adopted pursuant to national legislation contrary to EU law. The legal issue was whether it was contrary to the EU principles of equivalence and effectiveness in providing effective judicial protection to apply different legal principles to actions to establish the financial liability of the State as legislature, in respect of administrative measures enacted pursuant to legislation which has been declared unconstitutional, when compared and contrasted with actions in respect of measures that have been enacted pursuant to a rule that has been held to be contrary to EU law. After recalling its previous case law regarding the conditions for state liability the Court of Justice said that it is on the basis of the rules of municipal law on liability that the State
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must make reparation for the consequences of the loss and damage caused, provided that the conditions for reparation of loss and damage laid down by municipal law are not less favourable than those relating to similar domestic claims (under the principle of equivalence) and are not so framed as to make it, in practice, impossible or excessively difficult to obtain reparation under the principle of effectiveness). For the principle of equivalence, it requires that all the rules applicable to actions apply without distinction to actions alleging infringement of European Union law and to similar actions alleging infringement of municipal law. The Court then considered the difference between the two types of action in Spanish law. It found that the only difference between the two actions was the fact that the breaches of law on which they are based are established, in respect of one, by the Court in a judgment given pursuant to an enforcement action under Article 258 TFEU and, in respect of the other, by a judgment of the Spanish Tribunal Constitucional. Accordingly, the two actions may be regarded as similar for the purposes of the principle of equivalence. This principle therefore precludes the application of a rule such as that at issue in the main proceedings whereby an applicant must exhaust all judicial and administrative remedies in a state liability action. The Court considered that where there is a claim for reparation of the damage caused by a breach of EU law by a Member State, it is not a condition for this that the existence of such a breach must be clear from a preliminary ruling. Even where there is no request for a preliminary ruling at all, a successful claim for state liability is possible. EU law precludes the application of a rule of a Member State under which an action for damages against the State, alleging a breach of that law by national legislation which has been established by a judgment of the Court of Justice given pursuant to Article 260 TFEU, can succeed only if the applicant has previously exhausted all domestic remedies for challenging the validity of a harmful administrative measure adopted on the basis of that legislation, when such a rule is not also applicable as well, to an action for damages against the State alleging breach of the Constitution by national legislation that has been established by the competent court.

Conclusion
This chapter has been concerned with the remedies that are available for breach of EU law at municipal level. We have seen how the principles of equivalence and effectiveness have been applied to situations where claimants have either found themselves with no remedy or having one provided that was inadequate. In some cases the Court of Justice will even go so far as to lay down conditions for the remedy that is to be provided in the case. Normally, though, it will leave the assessment of the conditions of equivalence and effectiveness to the municipal court.

You be the Judge : Remedies in EU Law

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1. Which European Court case decided that EU Law allows municipal judges to suspend the operation of a municipal legislative provision? Choose one answer from the list below: a. Van Gend en Loos v Nederlands Administratie der Belastigen C-26/62 b. Costa v ENEL C-6/64 c. Simmenthal SpA v Amministrazione delle Finanze dello Stato C-7/77 d. International Handelsgesselschaft mbH v Eurhir-und Vorratssttelle fur Getreide und Futtermittel C-11/70 e. R v Secretary of State for Transport ex parte Factortame Ltd C-213/89. 2. In which case did the CoJ hold the following: (1) that it is a condition of state liability that the Member States breach of Community law must be sufficiently serious?; and (2) at paragraph 56 of its judgment, set out the factors which should be taken into account when determining whether or not the breach is sufficiently serious? a. Case C-91/92 Paola Faccini Don v Recreb SRL b. Joined Cases C-178, 179 &188-190/94 Dillenkoffer c. Cases C-46&48/93 Brasserie du Pecheur and Factortame d. Case C-188/89 Foster v British Gas e. Case C-6&9/90 Francovich 3. Adopted under the provisions of the Articles of the TFEU that concern the environment, the Council (of Ministers) has adopted a (fictitious) directive that has not been implemented on the prevention of plant parasites. Article 1 of the Directive provides that: "For the purpose of protecting plant health and the natural environment, Member States shall ensure plant health inspections are undertaken in order to eliminate parasites." A local florist is complaining that his plants have been affected by a parasite. Does the unimplemented Directive create rights for him? Choose one of the following answers: a. Yes. The Directive creates rights. b. No. It does not create rights.

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c. Yes. It creates rights from implementation date. d. Yes. It creates rights from its date of adoption. Note : it does not create rights for him because the object of the rules is directed at the environment. The directive would have to be written as a single market measure for him as a business for him to benefit personally from it. 4. Is the non implementation of a Directive a "sufficiently serious breach" for the purposes of a state liability action? a. No. b. Only if is directly effective. c. Only if it should have been implemented at least one year ago. d. Yes. e. Yes, so long as there is also an enforcement action under Article 258 ongoing. 5. Which one of these is not a requirement for a state liability action? a. an unlawful act b. existence of damage c. a causal link between the breach of EU law and the damage d. clear, precise and unconditional wording of the law e. none of the above 6. Which one of these statements in not correct? a. State liability is not explicitly mentioned in the Treaties. b. State liability is an EU remedy that must be implemented in municipal law. c. State liability can apply whether there is direct effect or not. d. The conditions for state liability are the same as for the non-contractual liability of the EU. e. Only Municipal legislatures can be liable.

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Answers : 1.e 2.c 3.b 4.d 5.d 6.e

Key Reading
T. Eilmansberger, 'The Relationship between Rights and Remedies in EC Law: In Search of the Missing Link' (2004) 41 Common Market Law Review 1199 provides an interesting look at the relationship between the creation of EU law rights and the necessary remedies for their enforcement. Anagnostaras, G 'Erroneous judgments and the prospect of damages: the scope of the principle of governmental liability for judicial breaches@, (2006) European Law Review. This interesting article considers that state liability for judicial breaches will have limited effectiveness in practice. Nassimpian, D And we keep on meeting: (de-) fragmenting state liability (2007) 32 EL Rev 819 This article looks in depth at the rules on state liability and considers how hard it is for complainants to succeed in getting an award of damages. Beutler, B 'State liability for breaches of community law by national courts: is the requirement of a manifest infringement of the applicable law an insurmountable obstacle?@ Common Market Law Review (2009) 781 This article looks at the interesting possibilities for municipal courts to be found liable for their own breaches of Union law. Arnull, A 'The principle of effective judicial protection in EU law: an unruly horse?' European Law Review (2011) 51 . This article looks at the scope of the general principle of effective judicial protection in EU law. It looks at case law of the Court of Justice and makes some interesting observations about the development of the EU law on remedies. It is nevertheless submitted that its contribution to the effective protection of individuals will be relatively limited for two basic reasons.

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