Enforcing directives: the law of diminishing coherence? EUROPEAN

Enforcing directives: the law of diminishing coherence?

Jan Komárek European Institute & Department of Law

Legal effects of directives  Art. 288, third subparagraph TFEU: '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'.  can any provision of a directive be ever directly effective?

Case 41/74 Van Duyn  a Dutch national refused entry into the UK (she was a member of the Church of Scientology)  Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health  the ECJ:  binding effect of directives  rejection of "contrary to" (regulations) argument

 useful effect of directives  argument with reference to preliminary ruling procedure

Unwelcoming reaction  Conseil d'Etat, 1978, the Cohn-Bendit Case: '... whatever the detail that [directives] contain for the eyes of the Member-States, [they] may not be invoked by the nationals of such States in support of an action brought against an individual administrative act'.  this case law eventually abandoned only in 2009, Emmanuelle Perreux Case

Elaborating on the reasons  the "estoppel argument" - Case 148/78 Ratti  a company complying with labelling requirements of a directive not yet implemented in Italy; law in force imposing more stringent requirements – criminal prosecution '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' (para. 22).

Conditions  the provision in question must be 'unconditional and sufficiently precise'  the period for implementation must have expired – BUT...  against whom? ...

Imposing obligations on individuals?  the logic the 'estoppel argument'  Case 152/84 Marshall:  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

 different retirement age  Southampton and South-West Hampshire Area Health Authority

Marshall  the ruling and its consequences 'It must be emphasized that according to Article 189 of the EEC Treaty 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' (para. 48).  no "inverse" vertical direct effect

 no horizontal direct effect ... OR?

DEBATE

Shall the ECJ maintain the prohibition on horizontal direct effect of directives?

Overcoming the limitations  what is a state?  'incidental' direct effect and 'triangular situations'  member state liability  consistent interpretation ('indirect effect')

An extensive definition of the State  Marshall: '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 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' (para. 49).

 C-188/89 Foster:  compulsory retirement age, 60 women, 65 men  respondent: British Gas - a private company, but...:  monopoly of gas supply in Britain,  members appointed by Secretary of State,  directions from the government,  regular reports...

Foster  a body,

 whatever its legal form,  which has been made responsible for providing a public service under the control of the State

 pursuant to a measure adopted by the State  has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals  is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon

'Incidental' horizontal direct effect  C-194/94 CIA  a 'procedural directive' (83/189) – notification of national technical standards  CIA suing competing companies for libel (that its security systems do not comply with Belgian legislation)  defendants' counterclaims: CIA indeed did not comply

CIA '...it is undisputed that the aim of the directive is to protect freedom of movement for goods by means of preventive control and that the obligation to notify is essential for achieving such Community control. The effectiveness of Community control will be that much greater if the directive is interpreted as meaning that breach of the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable to individuals'.

How far?  C-443/98 Unilever Italia:  parties to a contract on the supply of wine; one of the

conditions stipulated that it must comply with the rules in force in the state of import  labelling indicating the geographical origin of the various kinds of olive oil  supplier did not comply, retailer refused to pay

 C-226/97 Lemmens:  breath-analysis apparatus used by the Police in the NED  distinction between a 'hindering of the use or marketing of a product' and its 'any use'

Triangular situations  C-201/02 Wells - development consent granted in breach of requirements of the EIA directive '...the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights ... Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned...' (paras. 56 and 57).

Member State liability  Joined Cases C-6/90 and C-9/90 Francovich and Others v Italy  Joined Cases C-46 and C-48/93 Brasserie de Pêcherur/Factortame III  Case C-91/92 Facchini Dori  language correspondence course, impossibility to renounce it in line with consumers protection directive  no horizontal direct effect – liability  an 'easy' way out? - who pays, in the end?

Interpretation in conformity with a directive  many different names:            

indirect effect, concurring or concurrent interpretation, loyal interpretation, harmonious interpretation, benevolent interpretation, conciliatory interpretation, consistent interpretation, interpretative obligation, principle of purposive interpretation, Von Colson principle, uniform interpretation, ‘invocabilité d’interprétation’

Case 14/83 Von Colson  Directive 76/207 - equal treatment for men and women as regard access to employment, vocational training and promotion, and working conditions  female job applicants (social workers) – prison; not allowed to the main proceedings  relevant provision of the German law: 'damages in respect of the loss incurred by the worker as a result of his reliance on the expectation that the establishment of the employment relationship would not be precluded by such a breach [of the principle of equal treatment]'

The questions  On the relevant sanction: Is it possible to infer from the Directive any sanction in the event of discrimination other than the right to the conclusion of a contract of employment?  Is it enforceable befora national courts?: Can the Directive, as properly interpreted, be relied on before national courts by persons who have suffered injury? (para. 21)

The sanction 'Although Directive No 76/207/EEC, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the Member States free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a Member State chooses to penalize breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application' (para. 28).

The principle 'It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law' (para. 28).  the referring court granted 6-month salary to the applicants

A wider context  'adventurous'? compare to the Princess Soraya judgment of the BVerfG (14. 2. 1973):  according to § 253 BGB no money damages could be recovered for an injury to non-pecuniary interests – such as violations of the right to private life  'occasionally, the law can be found outside the positive legal rules erected by the state; this is law which emanates from the entire constitutional order and which has as its purpose the 'correction' of written law. It is for the judge to ‘discover’ this law and through his opinions give it concrete effect. The Constitution does not restrict judges to apply statutes in their literary sense when deciding cases put before them'.

Pfeiffer – the facts and issues  minumum working hours (directive 93/104)  German Red Cross emergency workers  calculation of working time – is "duty time" to be included?  German legislation: does not qualify "duty time" as working time  if so, applicant entitled to the salary at an overtime rate  but: Red Cross – a private party

Pfeiffer 'when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC [now Article 288 TFEU]'

Pfeiffer 'Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, it does not entail an interpretation merely of those provisions but requires the national court to consider national 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'.

Pfeiffer 'In that context, if the application of interpretative methods recognised by national law enables, in certain circumstances, a provision of domestic law to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of that provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, the national court is bound to use those methods in order to achieve the result sought by the directive'.

The methods of interpretation  'interpretative methods recognised by national law'  no contra legem interpretation – C-268/06 Impact 'express prohibition of retrospective application of the rules in question (concerning fixed-term contracts concluded before the implementing legislation's entry into force)'

Since when?  C-212/04 Adeneler - fixed-term contracts,  entered into before the deadline for implementation of the relevant directive, but after it entered into force  when: publication in OJ or expiry of the period for implementation or actual implementation?

Adeneler  directive binding on all national authorities, including courts  directive 'produces legal effects for a MS' – what does this mean?  'during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by it'  'from the date upon which a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive'

DEBATE

Are there any meaningful limits to the requirements to interpret domestic law in conformity with EU law?

Reducing direct effect to absurdity?  C-144/04 Mangold  Directives 1999/70 [fixed-term contracts] and 2000/78

[equal treatment in employment and occupation]  GER: fixed-term contracts for persons older than 58 (52)  Mr. Mangold's contract concluded before Germany was obliged to implement the Directive (temporary derogation)  two obstacles to the Directive's effect in the case:  the time  horizontal situation

Mangold  'Directive 2000/78 does not itself lay down the principle of equal treatment in the field of employment and occupation'  the period for implementation irrelevant  horizontal application, at least in the sense of setting aside ('exclusionary' direct effect)

Dejà vu? The unwelcoming reaction to Mangold  Roman Herzog and Lüder Gerken, "Stop the European Court of Justice" (FAZ)  AG Mazák in C-401/05 Palacios de la Villa  Editorial in Common Market Law Review: 'Horizontal direct effect – A law of diminishing coherence?'  The Honeywell Case pending before the BVerfG  meanwhile in Luxembourg...  Case C-227/04 P Lindorfer v. Council  C 427/06 Bartsch

Direct effect of general principles  C-555/07 Kücükdeveci  a bold confirmation of Mangold  but, relevance of the underlying directive and the period for its implementation (para. 25)  "the general principle of European Union law prohibiting all discrimination on grounds of age, as given expression in Directive 2000/78"

 how about other principles? - C-378/08 ERG and Others  environmental principles (Art. 174 (2) TEC, now 191 (2) TFEU)  Directive 2004/35 [environmental liability] and "polluter pays principle"  "the provision is confined to defining the general environmental objectives of the Community"

The Honeywell Case  BVerfG, judgment of 6 July 2010, Case 2 BvR 2661/06:  'Ultra vires review may only be exercised in a manner which is open towards European law' (para. 58).  'A sufficiently qualified breach by the Court of Justice of the principle of conferral cannot be ascertained. Neither the opening of the field of application of Directive 2000/78/EC to cover cases which were to particularly attain the objective of the vocational integration of long-term unemployed older workers, nor the advance effect of Directive 2000/78/EC, which was yet to be transposed in Germany, presumed by the Court of Justice, nor the derivation of a general principle of the prohibition of discrimination based on age, led to a structurally significant shift to the detriment of Member State competences' (para. 71).  Germany to be liable to its citizens? (paras. 85-86)

DEBATE

Which approach do you prefer: Dougan's "trigger model" or Lenaerts's "primacy approach"?