To what extent may indirect effect be considered to be a useful legal doctrine for individuals seeking to enforce European Union directives? PDF

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Module code

LW593

Module title

European Law

Seminar leader’s name (if unsure please check timetable)

Hedemann-Robinson Mr M, Mbioh Dr W

Student’s first name

Nathan

Student’s family name

Mloyi

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Nm505

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1: 2: 3: 4: 5: 6: Other/Resit :

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x

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914

To what extent may indirect effect be considered to be a useful legal doctrine for individuals seeking to enforce European Union directives?

Indirect effect describes a principle present in EU law, whereby national courts are under an obligation to interpret national legislation with EU directives. This principle contrasts with direct effect, which allows individuals to invoke provisions of community law in national courts. Indirect arises from the failure of a nation state to implement an EU directive appropriately. This principle was established in the Von Colson and Kamann v Land Nordrhein-Westfalen case. The Court here did not focus on vertical por horizontal direct effect but instead relied on the fidelity clause of Article 4(3)1, which required Member states to “take appropriate measures to ensure fulfilment of their union obligations”2.

Indirect effect may be considered to be a useful legal doctrine for individuals seeking to enforce EU directives as this doctrine allows individuals to rely on EU directives in bringing actions against other individuals or private entities, as established in the Marleasing case3. Although in this case a positive obligation wasn’t imposed, the subsequent case of Webb allowed an “imposition of a positive obligation”4. While this is contrary to courts interpretation of Art.249(3) in Marshall (No.1)5, in this instance 1 Case C-14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 189 [26] 2 Art.4(3) TEU 3 Case C-106/89, Marleasing [1990] E.C.R. I-4135. 4 Webb v. EMO Air Cargo (UK) Ltd (No.2) [1995] 4 All E.R. 577; 5 Case 152/84 Marshall v Southampton and South West Area Health Authority. [1986] ECR 723

the individual would enforce their rights under EU directives indirectly via national law and not directly form EU law. There is some debate to be had however, on whether courts judgement in the Arcaro case had led to the limiting of courts ability to “impose a positive obligation” against a private entity6. However, as pointed out by Arnelll and Advocate General Jacobs in the case of Centrostol, that the decision in Arcaro was made in light of criminal proceedings and there would not apply civil cases7. The process of indirect effect however is an expensive and lengthy process. Therefore, corporations are likely to be the only ones who have money to challenge natural law. This is in itself shows that courts are still reinforcing inequalities as ordinary people class individuals are effectively left out. Indirect may also be considered a useful legal doctrine for individuals seeking to enforce EU directives as this doctrine imposes a duty on the courts to interpret national law as a whole as established in Pfeiffer case. This creates in roads into national constitutional law allowing for greater protection of individuals rights 8. Furthermore, the Marleasing outlined that it is also the duty of national courts to interpret national law, as far as possible in light of the wording and the purpose of the directive9. For Sarah Drake “indirect effect has contributed to a significant extent to the protection of individual rights since its development over two decades ago”10. The doctrine of indirect effect is not absolute however, as established in the Wagner Miret there is no duty on national court to interpret national law that would arrive at a result that is contra legem11. This means national courts must presume that the national legislation is intended to comply with EU Law and if cannot be interpreted in such a way then the remedy would be to sue the state for damages under the Francovich principle12. Another limitation of the indirect effect doctrine is that national courts must interpret pre-existing national law therefore in order to rely on the directive there have to be a pre-existing national law 13. The Indirect effect doctrine better known as 6 Drake Sarah, 'Twenty years after Von Colson: the impact of "indirect effect" on the protection of the individual's community rights' [2005]30(3) European Law Review 5-6 7 ibid 8 Drake Sarah, 'Twenty years after Von Colson: the impact of "indirect effect" on the protection of the individual's community rights' [2005]30(3) European Law Review 5-6 9 [1990] ECR 1-4135 [8]. 10 Maria Fletcher, 'Extending "indirect effect" to the third pillar: the significance of Pupino?' [2005] 30(6) European Law Review 862-877 11 C-334/92 Wagner Miret v Fondo di Garantia Salarial [1993] ECR I-6911 12 Francovich v Italy (C6/90) [1991] E.C.R. I-5357 13 Case C-106/89, Marleasing [1990] E.C.R. I-4135

doctrine of consistent interpretation is limited by the general principles of law that form part of EU Law. In Kolpinghuis case the CJEU held that national law could not be interpreted by the courts if it would lead to legal uncertainty. Similarly, as well if national law is interpreted and it imposes a retroactive punishment this again would be contrary to the general principles14.

In this essay I have explored the usefulness of indirect effect as a doctrine for individuals seeking to enforce European Union directives. In the opening section I identified the main advantage of indirect effect over direct through ability to bring actions against individuals or private entities, whilst also outlining the limits indirect effect. Through the decision of Pupino case, the court has essentially created an opportunity for EU framework decisions to have significant legal impacts15. However, it is also clear that indirect effect acts as a subversion of parliamentary sovereignty. This is because through this doctrine courts are obligated to construe and put aside primary legalisation.

Bibliography Statute Art.4(3) TEU

Cases C-334/92 Wagner Miret v Fondo di Garantia Salarial [1993] ECR I-6911 Francovich v Italy (C6/90) [1991] E.C.R. I-5357 Case C-106/89, Marleasing [1990] E.C.R. I-4135 Case 80/86, Public Prosecutor v Kolpinghuis Nijmegen [1987] Case C-14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 189 [26] Case C-106/89, Marleasing [1990] E.C.R. I-4135. Webb v. EMO Air Cargo (UK) Ltd (No.2) [1995] 4 All E.R. 577; Case 152/84 Marshall v Southampton and South West Area Health Authority. [1986] ECR 723 Journal Articles 14 Case 80/86, Public Prosecutor v Kolpinghuis Nijmegen [1987] 15 [2005] EUECJ C-105/03

Maria Fletcher, 'Extending "indirect effect" to the third pillar: the significance of Pupino?' [2005] 30(6) European Law Review 862-877 Drake Sarah, 'Twenty years after Von Colson: the impact of "indirect effect" on the protection of the individual's community rights' [2005]30(3) European Law Review 56...