Professor Anna Wyrozumska
Jean Monnet Chair of European Constitutional Law
Introduction to European Institutional Law 2010 - 2011
PRIMACY AND APPLICATION OF EU LAW/ PART 2
4. DIRECT APPLICATION OF DECISIONS
9/70 Grad /SACE/
decision may confer obligations only on its addressee
if addressed to the MS – no horizontal direct effect
5. DIRECT APPLICATION OF DIRECTIVES
41/74 Van Duyn
a) Art. 189 [ 249 TWE, 288 TFEU]
b) effet utile
c) Art. 177 [234 TWE, 267 TFEU]
148/78 Ratti
d) estoppel
estoppel ( e-'stä-p&l)
[a legal bar to alleging or denying a fact because of one's own previous actions or
words to the contrary]
non concedit venire contra factum proprium
principle of confidence
8/81 Ursula Becker
152/84 Marshall (No. 1) no horizontal effect
1
…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
C-188/89 Foster i inni v. British Gas plc
− the concept of the State − “emanation” of the State
 subject to the authority and control of the State
 have special powers for that purpose
 provide a public service
…could be relied on against organizations or bodies which were subject to the
authority or control of the State or had special powers beyond those which result
from the normal rules applicable to relations between individuals
6. INDIRECT EFFECT/ PRINCIPLE OF CONSONANT INTERPRETATION
INDIRECT EFFECT
14/83 Von Colson  transposing legislation 
duty of the national court to interpret provisions of national law “ in the
light of the wording and purpose of the directive”
80/86 Kolpinghuis  general principles of law
C-106/89 Marleasing SA v La Commercial …
14/83 Von Colson1
26 HOWEVER , 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 TO TAKE ALL APPROPRIATE
MEASURES , WHETHER GENERAL OR PARTICULAR , TO ENSURE THE
FULFILMENT 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
1
2
“reliance loss”
… IN APPLYING THE NATIONAL LAW AND IN PARTICULAR THE PROVISIONS
OF A NATIONAL LAW SPECIFICALLY INTRODUCED IN ORDER TO
IMPLEMENT DIRECTIVE NO 76/207 , NATIONAL COURTS ARE
REQUIRED TO INTERPRET THEIR NATIONAL LAW IN THE LIGHT OF THE
WORDING AND THE PURPOSE OF THE DIRECTIVE IN ORDER TO ACHIEVE
THE RESULT REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 189 .
… IN SO FAR AS IT IS GIVEN DISCRETION TO DO SO UNDER NATIONAL
LAW .
80/86 Kolpinghuis
 general principles of law
 no difference to the duty of interpretation whether the period for
implementation had expired or not
C-106/89 Marleasing SA v La Commercial …2
THE NATIONAL LAW AND IN PARTICULAR THE PROVISIONS OF A NATIONAL
LAW SPECIFICALLY INTRODUCED IN ORDER TO IMPLEMENT DIRECTIVE NO
76/207 , NATIONAL COURTS ARE REQUIRED TO INTERPRET THEIR
NATIONAL LAW IN THE LIGHT OF THE WORDING AND THE PURPOSE OF
THE DIRECTIVE IN ORDER TO ACHIEVE THE RESULT REFERRED TO IN THE
THIRD PARAGRAPH OF ARTICLE 189 .
28 … 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
2
8 In order to reply to that question, it should be observed that, as the Court pointed out in its judgment in Case
14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, paragraph 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 to take all appropriate measures, whether general or particular, to ensure the fulfilment 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 national law, whether the provisions in question were
adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as
possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the
latter and thereby comply with the third paragraph of Article 189 of the Treaty .
3
C-212/04 Konstantinos Adeneler
In cases where a directive is transposed belatedly into a Member State’s
domestic law and the relevant provisions of the directive do not have direct
effect, the national courts are bound to interpret domestic law so far as
possible, once the period for transposition has expired, in the light of
the wording and the purpose of the directive concerned with a view to
achieving the results sought by the directive, favouring the
interpretation of the national rules which is the most consistent with
that purpose in order thereby to achieve an outcome compatible with
the provisions of the directive.
It necessarily follows that, in such cases, the date on which the national
implementing measures actually enter into force in the Member State concerned
does not constitute the relevant point in time. Such a solution would be liable
seriously to jeopardise the full effectiveness of Community law and its uniform
application by means, in particular, of directives. Furthermore, 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.
(see paras 115-116, 123-124, operative part 4)
7. COMPENSATION OF THE PROTECTION OF INDIVIDUALS
THE PRINCIPLE OF STATE LIABILITY
C-6/90 i C-9/90 Francovich v. Italy
Community law remedy!!!
“inherent in the system of the Treaty”
1. The directive grants rights to individuals
2. The content of those rights is identifiable3 from the directive itself
3. There is a casual link between the breach of Community law by the
Member State and the actual loss suffered by the individual
3
[-"den-t&-'fI-&-b&l]
4
+ procedural autonomy
8. BACK TO THE DIRECTIVES  QUESTIONS
C-91/92 Recreb v. Faccini-Dori4
4
20 As the Court has consistently held since its judgment in Case 152/84 Marshall v
Southampton and South-West Hampshire Health Authority [1986] ECR 723,
paragraph 48, a directive cannot of itself impose obligations on an individual and
cannot therefore be relied upon as such against an individual.
21 The national court observes that if the effects of unconditional and sufficiently
precise but untransposed directives were to be limited to relations between State
entities and individuals, this would mean that a legislative measure would operate as
such only as between certain legal subjects, whereas, under Italian Law as under the
laws of all modern States founded on the rule of law, the State is subject to the law
like any other person. If the directive could be relied on only as against the State, that
would be tantamount to a penalty for failure to adopt legislative measures of
transposition as if the relationship were a purely private one.
22 It need merely be noted here that, as is clear from the judgment in Marshall, cited
above (paragraphs 48 and 49), the case-law on the possibility of relying on directives
against State entities is based on the fact that under Article 189 a directive is binding
only in relation to "each Member State to which it is addressed". That case-law seeks
to prevent "the State from taking advantage of its own failure to comply with
Community law".
5
Directive 85/577/EEC on the protection of the consumer in respect of contracts
negotiated away from business premises
… a directive cannot of itself impose obligations on an individual and
cannot therefore be relied upon as such against an individual
… is based on the fact that under Article 189 a directive is binding only in
relation to "each Member State to which it is addressed". That case-law
seeks to prevent "the State from taking advantage of its own failure to
comply with Community law".
24 The effect of extending that case-law to the sphere of relations between
individuals would be to recognize a power in the Community to enact obligations for
23 It would be unacceptable if a State, when required by the Community legislature
to adopt certain rules intended to govern the State's relations - or those of State
entities - with individuals and to confer certain rights on individuals, were able to rely
on its own failure to discharge its obligations so as to deprive individuals of the
benefits of those rights. Thus the Court has recognized that certain provisions of
directives on conclusion of public works contracts and of directives on harmonization
of turnover taxes may be relied on against the State (or State entities) (see the
judgment in Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839
and the judgment in Case 8/81 Becker v Finanzamt Muenster-Innenstadt [1982] ECR
53).
24 The effect of extending that case-law to the sphere of relations between
individuals would be to recognize a power in the Community to enact obligations for
individuals with immediate effect, whereas it has competence to do so only where it
is empowered to adopt regulations.
25 It follows that, in the absence of measures transposing the directive within the
prescribed time-limit, consumers cannot derive from the directive itself a right of
cancellation as against traders with whom they have concluded a contract or enforce
such a right in a national court.
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individuals with immediate effect, whereas it has competence to do so only
where it is empowered to adopt regulations.
C 334/92 Wagner Miret5
directive on the insolvency of employers
Spain requested the exclusion of domestic servants employed by a natural person
but not higher management staff
9. INCIDENTAL AND OBJECTIVE EFFECT OF DIRECTIVES
C-194/94 CIA Security International SA v Signalson SA and Securitel SPRL
a burglar alarm – Andromede – had won a prize but had not received prior approval
by the Belgian authorities
Signalson – derogatory6 statements  i.a. that it was not authorised for the Belgian
market
50. … 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.
“22 It would appear from the order for reference that the national provisions cannot be interpreted
in a way which conforms with the directive on the insolvency of employers and therefore do not
permit higher management staff to obtain the benefit of the guarantees for which it provides. If that
is the case, it follows from the Francovich judgment, cited above, that the Member State concerned is
obliged to make good the loss and damage sustained as a result of the failure to implement the
directive in their respect.
5
23 The reply to the third question must therefore be that (a) higher management staff are not
entitled, under Directive 80/987, to request payment of amounts owing to them by way of salary from
the guarantee institution established by national law for the other categories of employee, and (b) in
the event that, even when interpreted in the light of that directive, national law does not enable
higher management staff to obtain the benefit of the guarantees for which it provides, such staff are
entitled to request the State concerned to make good the loss and damage sustained as a result of
the failure to implement the directive in their respect.”
6
[di-'rä-g&-"tor-E] of low opinion
7
triangular7 effect
C-201/02 R (Delena Wells) v. the Secretary of State for Transport, Local
Government and the Regions Case 201/02 Delena Wells
–
Directive 85/337/EEC on the Assessment of the effects of certain projects on the
Environment
–
old mining permission which had not been subject to environmental
assessment/EA prior to the Secretary of State’s approval of conditions
–
followed some years later by a request to revoke the determination of conditions in order
to remedy the failure to carry out EA
On direct effect, the ECJ considered so-called “triangular direct effect” and ruled (para.s 56-57) that:
“… 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.”
C-240/98 and C-244/98 Océano Grupo Editorial SA v Roció Murciano
Quintero
1. Where a jurisdiction clause is included, without being individually
negotiated, in a contract between a consumer and a seller or
supplier and where it confers exclusive jurisdiction on a court in the
territorial jurisdiction of which the seller or supplier has his principal
7
[trI-'a[ng]-gy&-l&r]
8
place of business, it must be regarded as unfair within the meaning of
Article 3 of Directive 93/13 on unfair terms in consumer contracts in so
far as it causes, contrary to the requirement of good faith, a significant
imbalance in the parties' rights and obligations arising under the
contract, to the detriment of the consumer.
( see para. 24 )
2. The protection provided for consumers by Directive 93/13 on
unfair terms in consumer contracts entails the national court
being able to determine of its own motion whether a term of a
contract before it is unfair when making its preliminary
assessment as to whether a claim should be allowed to
proceed before the national courts.
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. The requirement for an interpretation in conformity with the
Directive requires the national court, in particular, to favour the
interpretation that would allow it to decline of its own motion the
jurisdiction conferred on it by virtue of an unfair term.
( see paras. 29, 32, operative part 1-2 )
Regulations − Directives  diferences
date
transposition
direct effect
but what is the main difference?
10. EXTENDING THE STATE LIABILITY PRINCIPLE
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C-46/93 and C-48/93 Brasserie du Pêcheur, Factortame III
1. The rule of Community law must confer rights on individuals
2. The breach must be “sufficiently serious”
3. There is a direct casual link between the breach and the damage
suffered by the injured party
“sufficiently serious”  MS/ or institutions 
manifestly and gravely disregarded the limits on its discretion
C-178, 179 & 188-190/94 Dillenkofer/ lack of transposition
C-5/94 Hedley Lomas
A Member State has an obligation to make reparation for the damage caused to an individual by
a refusal to issue an export licence in breach of Article 34 of the Treaty where the rule of
Community law infringed is intended to confer rights on individuals, the breach is
sufficiently serious and there is a direct causal link between the breach and the
damage sustained by the individuals.
Where the Member State which committed an infringement of a provision of Community law
conferring rights on individuals was, at the time when it committed the infringement, not
called upon to make any legislative choices and had only considerably reduced, or
even no, discretion, the mere infringement of Community law may be sufficient to
establish the existence of a sufficiently serious breach, which is required in order to give
rise to an obligation to make good damage suffered by individuals.
C-224/01 Köbler8  particularly manifest and grave infringement
8
Article 48 of the Treaty (now, after amendment, Article 39 EC) and Article
7(1) of Regulation No 1612/68 on freedom of movement for workers within the
Community are to be interpreted as meaning that they preclude the grant by a
Member State qua employer, of a special length-of-service increment to
university professors which secures a financial benefit in addition to basic
salary, the amount of which is already dependent on length of service, and
which a university professor receives if he has carried on that profession for at
least 15 years with a university in that Member State and if, furthermore, he
has been in receipt for at least four years of the normal length-of-service
increment. As it precludes, for the purpose of the grant of the special lengthof-service increment for which it provides, any possibility of taking into account
periods of activity completed by a university professor in another Member
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Remuneration of university professors – Indirect discrimination – Length-of-service
increment – Infringements attributable to a national court
The principle that Member States are obliged to make good damage caused
to individuals by infringements of Community law for which they are
responsible is also applicable when the alleged infringement stems from a
decision of a court adjudicating at last instance. That principle, inherent
in the system of the Treaty, applies to any case in which a Member State
breaches Community law, whichever is the authority of the Member State
whose act or omission was responsible for the breach.
In order to determine whether the infringement is sufficiently serious when the
infringement at issue stems from a decision of a court adjudicating at last
instance, the competent national court must, taking into account the
specific nature of the judicial function and the legitimate requirement of
legal certainty, determine whether that infringement is manifest. In
particular, the national court must take account of all the factors which
characterise the situation put before it. Those factors include, in particular, 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 Community 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 234 EC. In any event,
an infringement of Community law will be sufficiently serious where the
decision concerned was made in manifest breach of the case-law of the
Court in the matter. see paras 51-56, operative part 1
11. REMEDIES AND PROCEDURAL AUTONOMY
State, such a regime is clearly likely to impede freedom of movement for
workers. Although it cannot be excluded that an objective of rewarding
workers' loyalty to their employers in the context of policy concerning research
or university education constitutes a pressing public-interest reason, the
obstacle which such a measure entails clearly cannot be justified in the light of
such an objective. see paras 70-72, 83, operative part 2
An infringement of Community law does not have the requisite manifest
character for liability under Community law to be incurred by a Member State
for a decision of one of its courts adjudicating at last instance when, firstly,
Community law does not expressly cover the issue of law in question,
there is no answer to be found in the Court's case-law and the answer is
not obvious and secondly, the infringement is not deliberate in nature
but results from the incorrect reading of a judgment of the Court. see
paras 122-123, 126, operative part 3
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99/82 San Giorgio
C-6/90 & C-9/90 Francovich
C-213/89 Factortame No 2
222/84 Marguerite Jonhston; 222/86 Heylens
14/83 Von Colson
C-432/05 Unibet
1. Non-discrimination
2. The remedy must be effective (obtaining of a remedy “impossible or
excessively difficult”)
3. New remedies need not be created
4. No further substantive conditions
12. FORMER SECOND & THIRD PILLAR ACTS
1. Acts adopted before 1 December 2009
Protocol No 36/ Art. 9 & 10  their effects regulated by former rules until
repealed or amended up till 1 December 2014
Eg. ECJ jurisdiction  Art. 258 TFEU (ex 226) not applicable, Art. 267 (ex 234)
restrictions
2. Acts adopted after 1 December 2009
1. New acts: regulations, directives, decisions
2. New rules apply
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