Izabela Skomerska-Muchowska PhD
European Constitutional Law Department
University of Lodz
Course: Introduction to European Institutional Law
APPLICATION OF EU LAW BY NATIONAL COURTS
1. Direct-effect – general
Meaning of direct effect
broad – provisions of binding EU law which are sufficiently clear, precise,
unconditional and complete to be considered justiciable can be invoked and relied on
by individuals before national courts;
narrow – provisions of binding EU law are capable to confer rights on individuals.
The Netherlands and 26/62 Van Gend & Loos
The Van Gend en Loos imported a quantity of chemicals from Germany into the Netherlands.
It was charged with an import duty which had allegedly been increased (by changing the
tariff classification from the lower to a higher tariff heading) since the coming into force the
EEC Treaty, contrary to Article 12. On appeal against payment before the Dutch organ,
article 12 was raised in argument and national court referred to the ECJ question ‘whether
article 12 of the EEC treaty has direct application within the territories of a Member State; in
other words whether nationals of such State can, on the basis of the article in question, lay
claim to individual rights which the courts must protect’.
Observations submitted to the ECJ:
Belgium argued that the question was whether a national law ratifying an international treaty
would prevail over another law, and that this was a question on national constitutional law
which lay within exclusive jurisdiction of the Netherlands court.
The Netherlands government argued that the EEC treaty was no different from a standard
international treaty, and that the concept of direct effect would contradict the intention of
those who had created the treaty.
Article 12
Member States shall refrain from introducing, as between themselves, any new customs duties
on importation or exportation or charges with equivalent effect and from increasing such
duties or charges as they apply in their commercial relations with each other.
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5 . ACCORDING TO THE SPIRIT, THE GENERAL SCHEME AND THE WORDING
OF THE EEC TREATY, ARTICLE 12 MUST BE INTERPRETED AS PRODUCING
DIRECT EFFECTS AND CREATING INDIVIDUAL RIGHTS WHICH NATIONAL
COURTS MUST PROTECT .
THE WORDING OF ARTICLE 12 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 NATIONAL 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 .
Criteria for direct effect of the EU norm:
a. provision is sufficiently clear and precise for judicial application
b. it must establish an unconditional obligation/ leave no discretion to MSs or
Community institutions
c. the obligation must be complete (‘legally perfect’) and its implementation
must not depend on subsequent measures by MSs or Community institutions
If the EC law has direct effect then such law in effect grants rights to individuals
and those rights must be upheld by the national courts
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2. Direct effect of Treaty provisions
43/75
Defrenne v Sabena
Flight attendant brought action against airlines for sex discrimination. Airlines
admitted that women earn less for essentially the same job (not equal pay for work of
equal value).
Article 119 TEEC obliged Member States to ensure „the application of the principle
that men and women should receive equal pay for equal work”
MSs and Commision – the provision is addressed to Member States, not to
individuals, in consequence horizontal direct effect is excluded (the provision is not
legally complete).
1 . THE PRINCIPLE THAT MEN AND WOMEN SHOULD RECEIVE EQUAL
PAY , WHICH IS LAID DOWN BY ARTICLE 119 , IS ONE OF THE
FOUNDATIONS OF THE COMMUNITY . IT MAY BE RELIED ON BEFORE
THE NATIONAL COURTS . THESE COURTS HAVE A DUTY TO ENSURE
THE PROTECTION OF THE RIGHTS WHICH THAT PROVISION VESTS IN
INDIVIDUALS , IN PARTICULAR IN THE CASE OF THOSE FORMS OF
DISCRIMINATION WHICH HAVE THEIR ORIGIN DIRECTLY IN
LEGSILATIVE PROVISIONS OR COLLECTIVE LABOUR AGREEMENTS , AS
WELL AS WHERE MEN AND WOMEN RECEIVE UNEQUAL PAY FOR
EQUAL WORK WHICH IS CARRIED OUT IN THE SAME ESTABLISHMENT
OR SERVICE , WHETHER PRIVATE OR PUBLIC .
(…)
3 . IMPORTANT CONSIDERATIONS OF LEGAL CERTAINTY AFFECTING
ALL THE INTERESTS INVOLVED , BOTH PUBLIC AND PRIVATE , MAKE
IT IMPOSSIBLE IN PRINCIPLE TO REOPEN THE QUESTION OF PAY AS
REGARDS THE PAST . THE DIRECT EFFECT OF ARTICLE 119 CANNOT BE
RELIED ON IN ORDER TO SUPPORT CLAIMS CONCERNING PAY PERIODS
PRIOR TO THE DATE OF THIS JUDGMENT, EXCEPT AS REGARDS THOSE
WORKERS WHO HAVE ALREADY BROUGHT LEGAL PROCEEDINGS OR
MADE AN EQUIVALENT CLAIM.
horizontal direct effect!!!
3. Direct application of regulations
Article 288 TFEU
A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all Member States.
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34/73 Fratelli Variola v. Italian Finance Ministry
The ECJ was asked by a national court whether the provisions of a regulation could be
introduced into the legal order of a Member State by internal measures which reproduced the
contents of the Community provisions in such a way that the subject matter is brought under
national law.
The direct application of a Regulation means that its entry into force and its application in
favour of those subjects to it are independent of any measure of reception into national
law.
By virtue of the obligations arising from the Treaty and assumed on ratification member states
are under a duty not to obstruct the direct applicability inherent in Regulations and
other rules of Community law.
Strict compliance with this obligation is an indispensable condition of simultaneous and
uniform application of community Regulations throughout the Community.
More particularly, Member States are under an obligation not to introduce any measure
which might affect the jurisdiction of the Court to pronounce on any question involving
the interpretation of Community law or the validity of an act of the institutions of the
Community, is concealed from those subject to it.
4. Direct application of Decisions
Article 288
‘a decision shall be binding in its entirety. A decision which specifies to whom it is addressed
shall be binding only on them’
Decision addressed to Member State
9/70 Grad /SACE
1 . IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT ATTRIBUTED TO
DECISIONS BY ARTICLE 189 TO EXCLUDE IN PRINCIPLE THE POSSIBILITY
THAT PERSONS AFFECTED MAY INVOKE THE OBLIGATION IMPOSED BY A
DECISION . PARTICULARLY IN CASES WHERE, FOR EXAMPLE, THE
COMMUNITY AUTHORITIES HAVE BY MEANS OF A DECISION IMPOSED AN
OBLIGATION IN A MEMBER STATE OR ALL THE MEMBER STATES TO ACT IN A
CERTAIN WAY, THE EFFECTIVENESS ( " L' EFFET UTILE " ) OF SUCH A
MEASURE WOULD BE WEAKENED IF THE NATIONALS OF THAT STATE COULD
NOT INVOKE IT IN THE COURTS AND THE NATIONAL COURTS COULD NOT
TAKE IT INTO CONSIDERATION AS PART OF COMMUNITY LAW . ALTHOUGH
THE EFFECTS OF A DECISION MAY NOT BE IDENTICAL WITH THOSE OF A
PROVISION CONTAINED IN A REGULATION, THIS DIFFERENCE DOES NOT
EXCLUDE THE POSSIBILITY THAT THE END RESULT, NAMELY THE RIGHT OF
THE INDIVIDUAL TO INVOKE THE MEASURE BEFORE THE COURTS, MAY BE
THE SAME AS THAT OF A DIRECTLY APPLICABLE PROVISION OF A
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REGULATION . THEREFORE, IN EACH PARTICULAR CASE, IT MUST BE
ASCERTAINED WHETHER THE NATURE, BACKGROUND AND WORDING OF
THE PROVISION IN QUESTION, ARE CAPABLE OF PRODUCING DIRECT
EFFECTS IN THE LEGAL RELATIONSHIPS BETWEEN THE ADDRESSEE OF THE
ACT AND THIRD PARTIES .
Distinction between decision and regulation:
Case 6 / 68 Zuckerfabrik Watenstedt,11 July 1968
‘… a measure does not lose its character as a regulation simply because it may be
possible to ascertain with a greater or lesser degree the number or even the identity of
the persons to which it applies at any given time as long as there is no doubt that the
measure is applicable as the result of an objective situation of law or of fact which it
specifies and which is in harmony with its ultimate objective. Furthermore, the fact that
a legal provision may have different practical effects on the different persons to whom it
applies in no way contradicts its nature as a regulation provided that the situation to
which it refers is objectively determined’. (,).
Is this statement still relevant?
decision may confer obligations only on its addressee
if addressed to the MS – no horizontal direct effect
5. Direct effect of directives
Article 288 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’.
41/74 Van Duyn
Dutch Woman coming to the UK to work for the church of scientology was denied entry.
Article 39 guarantees free movement but subject to restrictions under policy and public
health. Directive 64/221 held that exceptions to Article 39 must be based exclusively on
individual conduct.
2. It would be incompatible with the binding effect attributed to a directive by Article 189
[now Article 288 TFEU] to exclude, in principle, the possibility that the obligation which it
imposes may be invoked by those concerned. In particular, where the Community authorities
have, by directives, imposed on Member States the obligation to pursue a particular course of
conduct, the useful effect of such an act would be weakened if individuals were prevented
from relying on it before the national courts and if the latter were prevented from taking it into
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consideration as an element of Community law. Article 177 [now Article 267-preliminary
ruling procedure], which empowers national courts to refer to the Court questions concerning
the validity and interpretation of all acts of the Community institutions, without
distinction, implies furthermore that these acts may be invoked by individuals in the national
courts.
It is necessary to examine in every case whether the nature, general scheme and wording
of the provision in question are capable of having direct effects on the relations between
Member States and individuals.
148/78 Tulio Ratti
1 . IT WOULD BE INCOMPATIBLE WITH THE BINDING EFFECT WHICH ARTICLE
189 ASCRIBES TO DIRECTIVES TO EXCLUDE ON PRINCIPLE THE POSSIBILITY OF
THE OBLIGATIONS IMPOSED BY THEM BEING RELIED ON BY PERSONS
CONCERNED. PARTICULARLY IN CASES IN WHICH THE COMMUNITY
AUTHORITIES HAVE , BY MEANS OF DIRECTIVE, PLACED MEMBER STATES
UNDER A DUTY TO ADOPT A CERTAIN COURSE OF ACTION , THE
EFFECTIVENESS OF SUCH AN ACT WOULD BE WEAKENED IF PERSONS WERE
PREVENTED FROM RELYING ON IT IN LEGAL PROCEEDINGS AND NATIONAL
COURTS PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT
OF COMMUNITY LAW . CONSEQUENTLY 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 . IT FOLLOWS THAT A NATIONAL COURT REQUESTED BY
A PERSON WHO HAS COMPLIED WITH THE PROVISIONS OF A DIRECTIVE NOT
TO APPLY A NATIONAL 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 . SUBJECT TO
THESE RESERVATIONS A MEMBER STATE MAY NOT APPLY ITS INTERNAL LAW
- EVEN IF IT IS PROVIDED WITH PENAL SANCTIONS - WHICH HAS NOT YET
BEEN ADAPTED IN COMPLIANCE WITH THE DIRECTIVE , TO SUCH A PERSON
AFTER THE EXPIRATION OF THE PERIOD FIXED FOR ITS IMPLEMENTATION .
ON THE OTHER HAND , SO LONG AS THE PERIOD PRESCRIBED FOR THE
MEMBER STATES TO INCORPORATE THE PROVISIONS OF A DIRECTIVE INTO
THEIR INTERNAL LEGAL ORDERS HAS NOT YET EXPIRED , THE DIRECTIVE
CANNOT HAVE DIRECT EFFECT ; SUCH EFFECT ONLY ARISES AT THE END OF
THE PERIOD PRESCRIBED AND IN THE EVENT OF DEFAULT BY THE
MEMBER STATE CONCERNED .
Reasons and legal basis of direct effect of directives:
Art. 288 + effet utile – directives are binding upon Member States which are obliged to
ensure the useful effect of such acts
Art. 267 (preliminary ruling procedure) – allows national courts to refer questions
concerning any EU measure including directives – it implies that such an act can be invoked
by individuals before national courts
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Estoppel argument – Member States are precluded by their failure to implement a directive
properly from refusing to recognize its binding effect in cases where it was pleaded against
them.
Direct effect arises at the end of the period prescribed for the Member States to
implement a directive
Requirements of direct effect
41/74 Van Duyn
It is necessary to examine in every case whether the nature, general scheme and wording
of the provision in question are capable of having direct effects on the relations between
Member States and individuals.
Clear, precise, unconditional? compete?
8/81 Ursula Becker
Ursula Becker, who resides in Münster, carries on the business of a self-employed credit
negotiator. As such she was liable in 1979, under the legislation in force at that time, to pay
turnover tax on the income which she received in the form of commissions for her activity as
a credit negotiator. In her preliminary returns in respect of turnover tax for the months March
to June 1979, Mrs Becker requested exemptions from tax from the Finanzamt MünsterInnenstadt for her credit negotiation transactions. She based the claim on Article 13 B (d) 1 of
the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of
the Member States relating to turnover taxes — Common system of value-added tax.
Article 13 B (d) 1 of the Sixth Council Directive 77/388/EEC
"Without prejudice to other Community provisions, Member States shall exempt the
following under conditions which they shall lay down for the purpose of ensuring the
correct and straightforward application of the exemptions and of preventing any
possible evasion, avoidance or abuse:
(d) ...
1. The granting and the negotiation of credit and the management of credit by the person
granting it;"
1. It would be incompatible with the binding effect which Article 189 of the EEC Treaty
ascribes to directives to exclude in principle the possibility of the obligation imposed by it
being relied upon by persons concerned. Particularly in cases in which the Community
authorities have, by means of a directive, placed Member States under a duty to adopt a
certain course of action, the effectiveness of such a measure would be diminished if persons
were prevented from relying upon it in proceedings before a court and national courts were
prevented from taking it into consideration as an element of Community law. Consequently, 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. Thus, wherever the provisions of a directive
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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 individuals are able to assert
against the State.
2. Whilst the Sixth Council Directive 77/388 on the harmonization of the laws of the Member
States relating to turnover taxes undoubtedly confers upon the Member States varying
degrees of discretion as regards implementing certain of its provisions, individuals may
not for that reason be denied the right to rely on any provisions which owing to their
particular subject-matter are capable of being severed from the general body of
provisions and applied separately. This minimum guarantee for persons adversely affected
by the failure to implement the directive is a consequence of the binding nature of the
obligation imposed on the Member States by the third paragraph of Article 189 of the EEC
Treaty. That obligation would be rendered totally ineffectual if the Member States were
permitted to annul, as the result of their inactivity, even those effects which certain
provisions of a directive are capable of producing by virtue of their subject-matter.
3. Article 13 C of Directive 77/388 does not in any way confer upon the Member States
the right to place conditions on or to restrict in any manner whatsoever the exemptions
provided for by Part B. It merely reserves the right to the Member States to allow, to a
greater or lesser degree, persons entitled to those exemptions to opt for taxation
themselves, if they consider that it is in their interest to do so.
4. The scheme of Directive 77/388 is such that on the one hand, by availing themselves of an
exemption, persons entitled thereto necessarily waive the right to claim a deduction in respect
of input tax and on the other hand, having been exempted from the tax, they are unable to pass
on any charge whatsoever to the person following them in the chain of supply, with the result
that the rights of third parties in principle cannot be affected.
Horizontal direct effect of directives
152/84 Marshall
Helen Marshall was dismissed after 14 years’ employment by the respondent authority on the
ground that she had passed 60, and the Authority’s policy required female employees to retire
at 60 and male employees at 65. National legislation imposed no obligation on women to
retire at 60, but neither did not prohibit employers from discriminating on ground of sex in
retirement matters. Marshal argued however that her dismissal violated the 1976 Equal
Treatment Directive, and the national court asked whether she could rely on the Directive
against the Health Authority.
4 . WHEREVER THE PROVISIONS OF A DIRECTIVE APPEAR , AS FAR AS THEIR
SUBJECT-MATTER IS CONCERNED , TO BE UNCONDITIONAL AND
SUFFICIENTLY PRECISE , THOSE PROVISIONS MAY BE RELIED UPON BY AN
INDIVIDUAL AGAINST THE STATE WHERE THAT STATE FAILS TO IMPLEMENT
THE DIRECTIVE IN NATIONAL LAW BY THE END OF THE PERIOD PRESCRIBED
OR WHERE IT FAILS TO IMPLEMENT THE DIRECTIVE CORRECTLY .
IT WOULD IN FACT BE INCOMPATIBLE WITH THE BINDING NATURE WHICH
ARTICLE 189 CONFERS ON THE DIRECTIVE TO HOLD AS A MATTER OF
PRINCIPLE THAT THE OBLIGATION IMPOSED THEREBY CANNOT BE RELIED ON
BY THOSE CONCERNED . CONSEQUENTLY , A MEMBER STATE WHICH HAS NOT
ADOPTED THE IMPLEMENTING MEASURES REQUIRED BY THE DIRECTIVE
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WITHIN THE PRESCRIBED PERIOD MAY NOT PLEAD , AS AGAINST
INDIVIDUALS , ITS OWN FAILURE TO PERFORM THE OBLIGATIONS WHICH THE
DIRECTIVE ENTAILS . IN THAT RESPECT THE CAPACITY IN WHICH THE
STATE ACTS , WHETHER AS EMPLOYER OR PUBLIC AUTHORITY , IS
IRRELEVANT . IN EITHER CASE IT IS NECESSARY TO PREVENT THE STATE
FROM TAKING ADVANTAGE OF ITS OWN FAILURE TO COMPLY WITH
COMMUNITY LAW .
5 . 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 .
Expanding vertical direct effect:
C-188/89 Foster v British Gas
The plaintiffs were employed by British Gas, whose policy it was to require women to retire
at 60 and men at 65. British gas was at the time a nationalized industry with responsibility for
and monopoly of the gas-supply system in Great Britain.
18 On the basis of those considerations, the Court has held in a series of cases that
unconditional and sufficiently precise provisions of a directive 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 .
19 The Court has accordingly held that provisions of a directive could be relied on against tax
authorities ( the judgments in Case 8/81 Becker, cited above, and in Case C-221/88 ECSC v
Acciaierie e Ferriere Busseni ( in liquidation ) [1990] ECR I-495 ), local or regional
authorities ( judgment in Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR
1839 ), constitutionally independent authorities responsible for the maintenance of public
order and safety ( judgment in Case 222/84 Johnston v Chief Constable of the Royal Ulster
Constabulary [1986] ECR 1651 ), and public authorities providing public health services (
judgment in Case 152/84 Marshall, cited above ).
20 It follows from the foregoing that 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
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 .
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Indirect effect /principle of consistent interpretation
14/83 Von Colson

14/83 Von Colson - is Article 6 of the Equal Treatment Directive (76/207)directly
applicable?
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”.
18 ARTICLE 6 REQUIRES MEMBER STATES TO INTRODUCE INTO THEIR
NATIONAL LEGAL SYSTEMS SUCH MEASURES AS ARE NECESSARY TO
ENABLE ALL PERSONS WHO CONSIDER THEMSELVES WRONGED BY
DISCRIMINATION ' ' TO PURSUE THEIR CLAIMS BY JUDICIAL PROCESS
' ' . IT FOLLOWS FROM THE PROVISION THAT MEMBER STATES ARE
REQUIRED TO ADOPT MEASURES WHICH ARE SUFFICIENTLY EFFECTIVE
TO ACHIEVE THE OBJECTIVE OF THE DIRECTIVE AND TO ENSURE THAT
THOSE MEASURES MAY IN FACT BE RELIED ON BEFORE THE NATIONAL
COURTS BY THE PERSONS CONCERNED. SUCH MEASURES MAY INCLUDE
, FOR EXAMPLE , PROVISIONS REQUIRING THE EMPLOYER TO OFFER A
POST TO THE CANDIDATE DISCRIMINATED AGAINST OR GIVING THE
CANDIDATE ADEQUATE FINANCIAL COMPENSATION , BACKED UP
WHERE NECESSARY BY A SYSTEM OF FINES . HOWEVER THE
DIRECTIVE DOES NOT PRESCRIBE A SPECIFIC SANCTION ; IT LEAVES
MEMBER STATES FREE TO CHOOSE BETWEEN THE DIFFERENT
SOLUTIONS SUITABLE FOR ACHIEVING ITS OBJECTIVE .
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 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
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IN CONFORMITY WITH THE REQUIREMENTS OF COMMUNITY LAW IN SO
FAR AS IT IS GIVEN DISCRETION TO DO SO UNDER NATIONAL LAW
C-106/89 Marleasing SA
The case concerned a ‘horizontal’ situation involving two private parties before national
court. The plaintiff company brought proceeding against La Comercial to have the defendant
company’s articles of association declared void as the company was created for the sole
purpose of defrauding creditors. The provisions of the relevant Council directive did not
include this ‘lack of cause’ as a ground for the nullity of a company, whereas the Spanish
Civil Code provided for the ineffectiveness of contracts for lack of cause.
2 . A national court hearing a case which falls within the scope of Directive 68/151 on the
coordination of safeguards which, for the protection of the interests of members and others,
are required by Member States of companies within the meaning of the second paragraph of
Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the
Community, is required to interpret its national law in the light of the purpose and the
wording of that directive in order to preclude a declaration of nullity of a public limited
company on a ground other than those listed in Article 11 of the directive. Those grounds
must themselves be strictly interpreted, in the light of that purpose, so as to ensure that nullity
on the ground that the objects of the company are unlawful or contrary to public policy must
be understood as referring exclusively to the objects of the company as described in the
instrument of incorporation or the articles of association.
7 (..) it is apparent from the documents before the Court that the national court seeks in
substance to ascertain whether a national court hearing a case which falls within the scope of
Directive 68/151 is required to interpret its national law in the light of the wording and the
purpose of that directive in order to preclude a declaration of nullity of a public limited
company on a ground other than those listed in Article 11 of the directive.
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 .
LIMITS OF CONSISTENT INTERPRETATION
80/86 Kolpinghuis
Criminal proceedings were brought against Kolpinghuis running a cafe for stocking for sale
and delivery a beverage which it called "mineral water" but which consisted of tap-water and
carbon dioxide . The undertaking was charged with infringing article 2 of the inspection
regulation of the municipality of Nijmegen which prohibited the stocking for sale and
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delivery of goods intended for trade and human consumption which were of unsound
composition. Public prosecutor relied inter alia upon Council Directive 80/777/EEC of 15 july
1980 on the approximation of the laws of the Member States relating to the exploitation and
marketing of natural mineral waters. The Directive provided in particular that the Member
States were to take the measures necessary to ensure that only waters extracted from the
ground of a member state and recognized by the responsible authority of that member state as
natural mineral waters satisfying the provisions of the Directive may be marketed as natural
mineral waters . That provision of the directive ought to have been implemented within four
years after the directive was notified, that is to say by 17 July 1984, but the Netherlands
legislation was amended only with effect from 8 august 1985, whereas the offences with
which the accused in the main proceedings was charged took place on 7 august 1984 .
12 AS THE COURT STATED IN ITS JUDGMENT OF 10 APRIL 1984 IN CASE 14/83 VON
COLSON AND KAMANN V LAND NORDRHEIN-WESTFALEN (( 1984 )) ECR 1891, 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 THE
NATIONAL LAW AND IN PARTICULAR THE PROVISIONS OF A NATIONAL LAW
SPECIFICALLY INTRODUCED IN ORDER TO IMPLEMENT THE DIRECTIVE,
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
OF THE TREATY .
13 HOWEVER, THAT OBLIGATION ON THE NATIONAL COURT TO REFER TO THE
CONTENT OF THE DIRECTIVE WHEN INTERPRETING THE RELEVANT RULES OF ITS
NATIONAL LAW IS LIMITED BY THE GENERAL PRINCIPLES OF LAW WHICH
FORM PART OF COMMUNITY LAW AND IN PARTICULAR THE PRINCIPLES OF
LEGAL CERTAINTY AND NON-RETROACTIVITY . THUS THE COURT RULED IN ITS
JUDGMENT OF 11 JUNE 1987 IN CASE 14/86 PRETORE DE SALO V X (( 1987 )) ECR ...
THAT A DIRECTIVE CANNOT, OF ITSELF AND INDEPENDENTLY OF A
NATIONAL LAW ADOPTED BY A MEMBER STATE FOR ITS IMPLEMENTATION,
HAVE THE EFFECT OF DETERMINING OR AGGRAVATING THE LIABILITY IN
CRIMINAL LAW OF PERSONS WHO ACT IN CONTRAVENTION OF THE
PROVISIONS OF THAT DIRECTIVE.
14 THE ANSWER TO THE THIRD QUESTION SHOULD THEREFORE BE THAT IN
APPLYING ITS NATIONAL LEGISLATION A COURT OF A MEMBER STATE IS
REQUIRED TO INTERPRET THAT LEGISLATION 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 OF THE TREATY, BUT A
DIRECTIVE CANNOT, OF ITSELF AND INDEPENDENTLY OF A LAW ADOPTED FOR
ITS IMPLEMENTATION, HAVE THE EFFECT OF DETERMINING OR AGGRAVATING
THE LIABILITY IN CRIMINAL LAW OF PERSONS WHO ACT IN CONTRAVENTION OF
THE PROVISIONS OF THAT DIRECTIVE .
12
As far as possible….
C 334/92 Wagner Miret
directive on the insolvency of employers
Spain requested the exclusion of domestic servants employed by a natural person but
not higher management staff
“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.
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.”
C-105/03 Maria Pupino
1
The reference for a preliminary ruling concerns the interpretation of Articles 2, 3 and 8
of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims
in criminal proceedings (OJ 2001 L 82, p. 1; ‘the Framework Decision’).
2
The reference has been made in the context of criminal proceedings against Mrs Pupino,
a nursery school teacher charged with inflicting injuries on pupils aged less than five years at
the time of the facts.
Legal background
European Union Law
The Treaty on European Union
3
Under Article 34(2) EU, in the version resulting from the Treaty of Amsterdam, which
forms part of Title VI of the Treaty on European Union, headed ‘Provisions on police and
judicial cooperation in criminal matters’:
‘The Council shall take measures and promote cooperation, using the appropriate form and
procedures as set out in this Title, contributing to the pursuit of the objectives of the Union.
To that end, acting unanimously on the initiative of any Member State or of the Commission,
the Council may:
13
…
b) adopt framework decisions for the purpose of approximation of the laws and regulations of
the Member States. Framework decisions shall be binding upon the Member States as to the
result to be achieved but shall leave to the national authorities the choice of form and
methods. They shall not entail direct effect;
…’
(…)
The Framework Decision
6
Under Article 2 of the Framework Decision, headed ‘Respect and recognition’:
‘1. Each Member State shall ensure that victims have a real and appropriate role in its
criminal legal system. It shall continue to make every effort to ensure that victims are treated
with due respect for the dignity of the individual during proceedings and shall recognise the
rights and legitimate interests of victims with particular reference to criminal proceedings.
2.
Each Member State shall ensure that victims who are particularly vulnerable can
benefit from specific treatment best suited to their circumstances.’
7
Article 3 of the Framework Decision, headed ‘Hearings and provision of evidence’
provides:
‘Each Member State shall safeguard the possibility for victims to be heard during proceedings
and to supply evidence.
Each Member State shall take appropriate measures to ensure that its authorities
question victims only insofar as necessary for the purpose of criminal proceedings.’
8
Article 8 of the Framework Decision, headed ‘Right to protection’, provides in
paragraph 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.’
9
Under Article 17 of the Framework Decision, each Member State is required to bring
into force the laws, regulations and administrative provisions necessary to comply with the
Framework Decision ‘not later than 22 March 2002’.
National legislation
10 Article 392 of the Codice di procedura penale (Italian Code of Criminal Procedure; ‘the
CPP’), which appears in Book V, Part II, Title VII, headed ‘Preliminary enquiries and
preliminary hearing’, provides:
14
‘1. During the preliminary enquiry, the Public Prosecutor’s Office and the person being
examined may ask the judge to take evidence under special arrangements:
a) where there are reasonable grounds for believing that the witness cannot be heard in
open court by reason of illness or serious impediment;
b) where, on the basis of specific facts, there are reasonable grounds for believing that the
witness is vulnerable to violence, threats, offers or promises of money or other benefits, to
induce him or her not to testify or to give false testimony.
…
1a.
In proceedings for offences under Articles 600a, 600b, 600d, 609a, 609c, 609d, and
609g of the criminal code [concerning sexual offences or offences with a sexual background],
the Public Prosecutor’s Office and the person being examined may ask for persons aged under
16 years to be heard in accordance with special arrangements even outside the cases referred
to in paragraph 1.
…’
11
Under Article 398(5a) of the CPP:
‘In enquiries concerning offences under Articles 600a, 600b, 600d, 609a, 609c, 609d, and
609g of the criminal code, where the evidence involves minors under 16, the judge shall
determine by order the place, time and particular circumstances for hearing evidence where a
minor’s situation makes it appropriate and necessary. In such cases, the hearing can be held in
a place other than the court, in special facilities or, failing that, at the minor’s home. The
witness statements must be fully documented by the use of sound and audiovisual recording
equipment. Where recording equipment or technical personnel are not available, the judge
shall use the expert report or technical advice procedures. The interview shall also be
minuted. The recordings shall be transcribed only at the request of the parties.’
Factual background and the question referred
12 The order for reference shows that, in the criminal proceedings against Mrs Pupino, it is
alleged that, in January and February 2001, she committed several offences of ‘misuse of
disciplinary measures’ within the meaning of Article 571 of the Italian Criminal Code (‘the
CP’) against a number of her pupils aged less than five years 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. She is further charged that, in
February 2001, she inflicted ‘serious injuries’, as referred to in Articles 582, 585 and 576 of
the CP, in conjunction with Article 61(2) and (11) thereof, by hitting a pupil in such a way as
to cause a slight swelling of the forehead. The proceedings before the Tribunale di Firenze are
at the preliminary enquiry stage.
13 The referring court states in that respect that, under Italian law, criminal procedure
comprises two distinct stages. During the first stage, namely that of the preliminary enquiry,
the Public Prosecutor’s Office makes enquiries and, under the supervision of the judge in
charge of preliminary enquiries, gathers the evidence on the basis of which it will assess
whether the prosecution should be abandoned or the matter should proceed to trial. The final
15
decision on whether to allow the prosecution to proceed or to dismiss the matter is taken by
the judge in charge of preliminary enquiries at the conclusion of an informal hearing.
14 A decision to send the examined person for trial opens the second stage of the
proceedings, namely the adversarial stage, in which the judge in charge of preliminary
enquiries does not take part. The proceedings proper begin with this stage. It is only at that
stage that, as a rule, evidence must be taken at the initiative of the parties and in compliance
with the adversarial principle. The referring court states that it is during the trial that the
parties’ submissions may be accepted as evidence within the technical sense of the term. In
those circumstances, the evidence gathered by the Public Prosecutor’s Office during the
preliminary enquiry stage, in order to enable the Office to decide whether to institute criminal
proceedings by proposing committal for trial or to ask for the matter to be closed, must be
subjected to cross-examination during the trial proper in order to acquire the value of
‘evidence’ in the full sense.
15 The national court states, however, that there are exceptions to that rule, laid down by
Article 392 of the CPP, which allow evidence to be established early, during the preliminary
enquiry period, on a decision of the judge in charge of preliminary enquiries and in
compliance with the adversarial principle, by means of the Special Inquiry procedure.
Evidence gathered in that way has the same probative value as that gathered during the second
stage of the proceedings. Article 392(1a) of the CPP has introduced the possibility of using
that special procedure when taking evidence from victims of certain restrictively listed
offences (sexual offences or offences with a sexual background) aged less than 16 years, even
outside the cases envisaged in paragraph 1 of that article. Article 398(5a) of the CPP also
allows the same judge to order evidence to be taken, in the case of enquiries concerning
offences referred to in Article 392(1a) of the CPP, under special arrangements allowing the
protection of the minors concerned. According to the national court, those additional
derogations are designed to protect, first, the dignity, modesty and character of a minor
witness, and, secondly, the authenticity of the evidence.
16 In this case, the Public Prosecutor’s Office asked the judge in charge of preliminary
enquiries in August 2001 to take the testimony of eight children, witnesses and victims of the
offences for which Mrs Pupino is being examined, by the special procedure for taking
evidence early, pursuant to Article 392(1a) of the CPP, on the ground that such evidence
could not be deferred until the trial on account of the witnesses’ extreme youth, inevitable
alterations in their psychological state, and a possible process of repression. The Public
Prosecutor’s Office also requested that evidence be gathered under the special arrangements
referred to in Article 398(5a) of the CPP, whereby the hearing should take place in specially
designed facilities, with arrangements to protect the dignity, privacy and tranquillity of the
minors concerned, possibly involving an expert in child psychology by reason of the delicate
and serious nature of the facts and the difficulties caused by the victims’ young age. Mrs
Pupino opposed that application, arguing that it did not fall within any of the cases envisaged
by Article 392(1) and (1a) of the CPP.
17 The referring court states that, under the national provisions in question, the application
of the Public Prosecutor’s Office would have to be dismissed. Those provisions do not
provide for the use of the Special Inquiry procedure, or for the use of special arrangements for
gathering evidence, where the facts are such as those alleged against the defendant, even if
there is no reason to preclude those provisions also covering cases other than those referred to
in Article 392(1) of the CPP in which the victim is a minor. A number of offences excluded
16
from the scope of Article 392(1) of the CPP might well prove more serious for the victim than
those referred to in that provision. That, in the view of the national court, is the case here,
where, according to the Public Prosecutor’s Office, Mrs Pupino maltreated several children
aged less than five years, causing them psychological trauma.
18 Considering that, ‘apart from the question of the existence or otherwise of a direct effect
of Community law’, the national court must ‘interpret its national law in the light of the letter
and the spirit of Community provisions’, and having doubts as to the compatibility of Articles
392(1a) and 398(5a) of the CPP with Articles 2, 3 and 8 of the Framework Decision,
inasmuch as the provisions of that code limit the ability of the judge in charge of preliminary
enquiries to apply the Special Inquiry procedure for the early gathering of evidence, and the
special arrangements for its gathering, to sexual offences or offences with a sexual
33 It should be noted at the outset that the wording of Article 34(2)(b) EU is very closely
inspired by that of the third paragraph of Article 249 EC. Article 34(2)(b) EU confers a
binding character on framework decisions in the sense that they ‘bind’ the Member States ‘as
to the result to be achieved but shall leave to the national authorities the choice of form and
methods’.
34 The binding character of framework decisions, formulated in terms identical to those of
the third paragraph of Article 249 EC, places on national authorities, and particularly national
courts, an obligation to interpret national law in conformity.
35 The fact that, by virtue of Article 35 EU, the jurisdiction of the Court of Justice is less
extensive under Title VI of the Treaty on European Union than it is under the EC Treaty, and
the fact that there is no complete system of actions and procedures designed to ensure the
legality of the acts of the institutions in the context of Title VI, does nothing to invalidate that
conclusion.
36 Irrespective of the degree of integration envisaged by the Treaty of Amsterdam in the
process of creating an ever closer union among the peoples of Europe within the meaning of
the second paragraph of Article 1 EU, it is perfectly comprehensible that the authors of the
Treaty on European Union should have considered it useful to make provision, in the context
of Title VI of that treaty, for recourse to legal instruments with effects similar to those
provided for by the EC Treaty, in order to contribute effectively to the pursuit of the Union’s
objectives.
37 The importance of the Court’s jurisdiction to give preliminary rulings under Article 35
EU is confirmed by the fact that, under Article 35(4), any Member State, whether or not it has
made a declaration pursuant to Article 35(2), is entitled to submit statements of case or
written observations to the Court in cases which arise under Article 35(1).
38 That jurisdiction would be deprived of most of its useful effect if individuals were not
entitled to invoke framework decisions in order to obtain a conforming interpretation of
national law before the courts of the Member States.
39 In support of their position, the Italian and United Kingdom Governments argue that,
unlike the EC Treaty, the Treaty on European Union contains no obligation similar to that laid
down in Article 10 EC, on which the case-law of the Court of Justice partially relied in order
to justify the obligation to interpret national law in conformity with Community law.
17
40
That argument must be rejected.
41 The second and third paragraphs of Article 1 of the Treaty on European Union provide
that that treaty marks a new stage in the process of creating an ever closer union among the
peoples of Europe and that the task of the Union, which is founded on the European
Communities, supplemented by the policies and forms of cooperation established by that
treaty, shall be to organise, in a manner demonstrating consistency and solidarity, relations
between the Member States and between their peoples.
42 It would be difficult for the Union to carry out its task effectively if the principle of
loyal cooperation, requiring in particular that Member States take all appropriate measures,
whether general or particular, to ensure fulfilment of their obligations under European Union
law, were not also binding in the area of police and judicial cooperation in criminal matters,
which is moreover entirely based on cooperation between the Member States and the
institutions, as the Advocate General has rightly pointed out in paragraph 26 of her Opinion.
43 In the light of all the above considerations, the Court concludes that the principle of
conforming interpretation is binding in relation to framework decisions adopted in the context
of Title VI of the Treaty on European Union. When applying national law, the national court
that is called upon to interpret it must do so as far as possible in the light of the wording and
purpose of the framework decision in order to attain the result which it pursues and thus
comply with Article 34(2)(b) EU.
44 It should be noted, however, that the obligation on the national court to refer to the
content of a framework decision when interpreting the relevant rules of its national law is
limited by general principles of law, particularly those of legal certainty and non-retroactivity.
45 In particular, 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, Joined Cases C74/95 and C-129/95 X [1996] ECR I-6609, paragraph 24, and Joined Cases C-387/02, C391/02 and C-403/02 Berlusconi and Others [2005] ECR I-0000, paragraph 74).
46 However, the provisions which form the subject-matter of this reference for a
preliminary ruling do not concern the extent of the criminal liability of the person concerned
but the conduct of the proceedings and the means of taking evidence.
47 The obligation on the national court to refer to the content of a framework decision
when interpreting the relevant rules of its national law ceases when the latter cannot receive
an application which would lead to a result compatible with that envisaged by that framework
decision. In other words, the principle of conforming interpretation cannot serve as the
basis for an interpretation of national law contra legem. That principle does, however,
require that, where necessary, the national court consider the whole of national law in order to
assess how far it can be applied in such a way as not to produce a result contrary to that
envisaged by the framework decision.
48 In this case, as the Advocate General has pointed out in paragraph 40 of her Opinion, it
is not obvious that an interpretation of national law in conformity with the framework
18
decision is impossible. It is for the national court to determine whether, in this case, a
conforming interpretation of national law is possible
(...)
56 In those circumstances, achievement of the aims pursued by the abovementioned
provisions of the framework decision require that a national court should be able, in respect of
particularly vulnerable victims, to use a special procedure, such as the Special Inquiry for
early gathering of evidence provided for in the law of a Member State, and the special
arrangements for hearing testimony for which provision is also made, if that procedure best
corresponds to the situation of those victims and is necessary in order to prevent the loss of
evidence, to reduce the repetition of questioning to a minimum, and to prevent the damaging
consequences, for those victims, of their giving testimony at the trial.
57 It should be noted in that respect that, according to Article 8(4) of the Framework
Decision, the conditions for giving testimony that are adopted must in any event be
compatible with the basic legal principles of the Member State concerned.
58 Moreover, in accordance with Article 6(2) EU, the Union must respect fundamental
rights, as guaranteed by the European Convention for the Protection of Human Rights and
Fundamental Freedoms signed in Rome on 4 November 1950 (‘the Convention’), and as they
result from the constitutional traditions common to the Member States, as general principles
of law.
59 The Framework Decision must thus be interpreted in such a way that fundamental
rights, including in particular the right to a fair trial as set out in Article 6 of the Convention
and interpreted by the European Court of Human Rights, are respected.
60 It is for the national court to ensure that – assuming use of the Special Inquiry and
of the special arrangements for the hearing of testimony under Italian law is possible in
this case, bearing in mind the obligation to give national law a conforming interpretation
– the application of those measures is not likely to make the criminal proceedings
against Mrs Pupino, considered as a whole, unfair within the meaning of Article 6 of the
Convention, as interpreted by the European Court of Human Rights (see, for example,
ECHR judgments of 20 December 2001, P.S. v Germany, of 2 July 2002, S.N. v Sweden,
Reports of judgments and decisions 2002-V, of 13 February 2004, Rachdad v France, and the
decision of 20 January 2005, Accardi and Others v Italy, App. 30598/02).
61 In the light of all the above considerations, the answer to the question must be that
Articles 2, 3 and 8(4) of the Framework Decision must be interpreted as meaning that the
national court must be able to authorise young children, who, as in this case, claim to have
been victims of maltreatment, to give their testimony in accordance with arrangements
allowing those children to be guaranteed an appropriate level of protection, for example
outside the trial and before it takes place. The national court is required to take into
consideration all the rules of national law and to interpret them, so far as possible, in the light
of the wording and purpose of the Framework Decision.
Articles 2, 3 and 8(4) of Council Framework Decision 2001/220/JHA of 15 March 2001
on the standing of victims in criminal proceedings must be interpreted as meaning that
the national court must be able to authorise young children, who, as in this case, claim to
19
have been victims of maltreatment, to give their testimony in accordance with
arrangements allowing those children to be guaranteed an appropriate level of
protection, for example outside the trial and before it takes place.
The national court is required to take into consideration all the rules of national law and
to interpret them, so far as possible, in the light of the wording and purpose of the
Framework Decision.
Summary - C-212/04 Konstantinos Adeneler
08 When national courts apply domestic law, they are bound to interpret it, 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 (see, inter alia, Joined Cases C-397/01 to C-403/01 Pfeiffer and Others
[2004] ECR I-8835, paragraph 113, and the case-law cited). This obligation to interpret
national law in conformity with Community law concerns all provisions of national law,
whether adopted before or after the directive in question (see, inter alia, Case C-106/89
Marleasing [1990] ECR I-4135, paragraph 8, and Pfeiffer and Others, paragraph 115).
109 The requirement for national law to be interpreted in conformity with Community law is
inherent in the system of the Treaty, since it permits national courts, for the matters within
their jurisdiction, to ensure the full effectiveness of Community law when they determine
the disputes before them (see, inter alia, Pfeiffer and Others, paragraph 114).
110 It is true that the obligation on a national court to refer to the content of a directive when
interpreting and applying the relevant rules of domestic law is limited by general principles
of law, particularly those of legal certainty and non-retroactivity, and that obligation
cannot serve as the basis for an interpretation of national law contra legem (see, by
analogy, Case C-105/03 Pupino [2005] ECR I-5285, paragraphs 44 and 47).
111 Nevertheless, the principle that national law must be interpreted in conformity with
Community law requires national courts to do whatever lies within their jurisdiction,
taking the whole body of domestic law into consideration and applying the interpretative
methods recognised by domestic law, with a view to ensuring that the directive in
question is fully effective and achieving an outcome consistent with the objective
pursued by it (see Pfeiffer and Others, paragraphs 115, 116, 118 and 119).
112 In addition, if the result prescribed by a directive cannot be achieved by way of
interpretation, it should also be borne in mind that, in accordance with the judgment in Joined
Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, at paragraph 39,
Community law requires the Member States to make good damage caused to individuals
through failure to transpose that directive, provided that three conditions are fulfilled. First,
the purpose of the directive in question must be to grant rights to individuals. Second, it must
be possible to identify the content of those rights on the basis of the provisions of the
directive. Finally, there must be a causal link between the breach of the Member State’s
obligation and the damage suffered (see, to this effect, Case C-91/92 Faccini Dori [1994]
ECR I-3325, paragraph 27).
20
Must a national court – as far as possible – interpret its domestic law in conformity with a
directive which was transposed belatedly into national law from:
(a)
the time when the directive entered into force, or
(b) the time when the time-limit for transposing it into national law passed without
transposition being effected, or
(c)
the time when the national measure implementing it entered into force?
C-212/04 Konstantinos Adeneler
113 With a view, more specifically, to determining the date from which national courts are
to apply the principle that national law must be interpreted in conformity with Community
law, it should be noted that that obligation, arising from the second paragraph of Article 10
EC, the third paragraph of Article 249 EC and the directive in question itself, has been
imposed in particular where a provision of a directive lacks direct effect, be it that the relevant
provision is not sufficiently clear, precise and unconditional to produce direct effect or that
the dispute is exclusively between individuals.
114 Also, before the period for transposition of a directive has expired, Member States
cannot be reproached for not having yet adopted measures implementing it in national
law (see Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraph 43).
115 Accordingly, where a directive is transposed belatedly, the general obligation owed
by national courts to interpret domestic law in conformity with the directive exists only
once the period for its transposition has expired.
116 It necessarily follows from the foregoing that, where a directive is transposed
belatedly, the date – envisaged by the referring court in Question 1(c) – 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.
117 In addition, in light of the date envisaged in Question 1(a) and with a view to giving a
complete ruling on the present question, it should be pointed out that it is already clear from
the Court’s case-law that the obligation on Member States, under the second paragraph of
Article 10 EC, the third paragraph of Article 249 EC and the directive in question itself, to
take all the measures necessary to achieve the result prescribed by the directive is binding on
all national authorities, including, for matters within their jurisdiction, the courts (see, inter
alia, Inter-Environnement Wallonie, paragraph 40, and Pfeiffer and Others, paragraph 110,
and the case-law cited).
118 Also, directives are either (i) published in the Official Journal of the European
Communities in accordance with Article 254(1) EC and, in that case, enter into force on the
date specified in them or, in the absence thereof, on the 20th day following that of their
publication, or (ii) notified to those to whom they are addressed, in which case they take
effect upon such notification, in accordance with Article 254(3) EC.
21
119 It follows that a directive produces legal effects for a Member State to which it is
addressed – and, therefore, for all the national authorities – following its publication or
from the date of its notification, as the case may be.
120 In the present instance, Directive 1999/70 states, in Article 3, that it was to enter into
force on the day of its publication in the Official Journal of the European Communities,
namely 10 July 1999.
121 In accordance with the Court’s settled case-law, it follows from the second paragraph of
Article 10 EC in conjunction with the third paragraph of Article 249 EC and the directive in
question itself that, 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 (Inter-Environnement Wallonie,
paragraph 45; Case C-14/02 ATRAL [2003] ECR I-4431, paragraph 58; and Mangold,
paragraph 67). In this connection it is immaterial whether or not the provision of national law
at issue which has been adopted after the directive in question entered into force is concerned
with the transposition of the directive (ATRAL, paragraph 59 and Mangold, paragraph 68).
122 Given that all the authorities of the Member States are subject to the obligation to ensure
that provisions of Community law take full effect (see Francovich and Others, paragraph 32;
Case C-453/00 Kühne & Heitz [2004] ECR I-837, paragraph 20; and Pfeiffer and Others,
paragraph 111), the obligation to refrain from taking measures, as set out in the previous
paragraph, applies just as much to national courts.
123 It follows that, 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.
124 In light of the foregoing reasoning, the answer to the first question must be that, 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.
INCIDENTAL EFFECT OF DIRECTIVES
C-194/94 CIA Security International SA v Signalson SA and Securitel SPRL
CIA Security brought proceedings against the defendants before Belgian commercial court
asking for orders requiring them to cease unfair trade practices. CIA argued that two
companies had libelled it by claiming that the alarm system Andromede which it marketed
had not been approved as required by Belgian legislation. CIA agreed that it had not sought
approval but argued that the Belgian legislation was in breach of article 28 of the Directive
and had not been notified to the Commission as required by Directive.
22
44 That view cannot be adopted. Articles 8 and 9 of Directive 83/189 lay down a precise
obligation on Member States to notify draft technical regulations to the Commission before
they are adopted. Being, accordingly, unconditional and sufficiently precise in terms of their
content, those articles may be relied on by individuals before national courts.
45 It remains to examine the legal consequences to be drawn from a breach by Member States
of their obligation to notify and, more precisely, whether Directive 83/189 is to be interpreted
as meaning that a breach of the obligation to notify, constituting a procedural defect in the
adoption of the technical regulations concerned, renders such technical regulations
inapplicable so that they may not be enforced against individuals.
46 The German and Netherlands Governments and the United Kingdom consider that
Directive 83/189 is solely concerned with relations between the Member States and the
Commission, that it merely creates procedural obligations which the Member States must
observe when adopting technical regulations, their competence to adopt the regulations in
question after expiry of the suspension period being, however, unaffected, and, finally, that it
contains no express provision relating to any effects attaching to non-compliance with those
procedural obligations.
47 The Court observes first of all in this context that none of those factors prevents noncompliance with Directive 83/189 from rendering the technical regulations in question
inapplicable.
48 For such a consequence to arise from a breach of the obligations laid down by Directive
83/189, an express provision to this effect is not required. As pointed out above, 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.
49 That interpretation of the directive is in accordance with the judgment given in Case
380/87 Enichem Base and Others v Comune di Cinisello Balsamo [1989] ECR 2491,
paragraphs 19 to 24. In that judgment, in which the Court ruled on the obligation for Member
States to communicate to the Commission national draft rules falling within the scope of an
article of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), the
Court held that neither the wording nor the purpose of the provision in question provided any
support for the view that failure by the Member States to observe their obligation to give
notice in itself rendered unlawful the rules thus adopted. In this regard, the Court expressly
considered that the provision in question was confined to imposing an obligation to give prior
notice which did not make entry into force of the envisaged rules subject to the Commission' s
agreement or lack of opposition and which did not lay down the procedure for Community
control of the drafts in question. The Court therefore concluded that the provision under
examination concerned relations between the Member States and the Commission but that it
did not afford individuals any right capable of being infringed in the event of breach by a
Member State of its obligation to give prior notice of its draft regulations to the Commission.
50 In the present case, however, the aim of the directive is not simply to inform the
Commission. As already found in paragraph 41 of this judgment, the directive has, precisely,
23
a more general aim of eliminating or restricting obstacles to trade, to inform other States of
technical regulations envisaged by a State, to give the Commission and the other Member
States time to react and to propose amendments for lessening restrictions to the free
movement of goods arising from the envisaged measure and to afford the Commission time to
propose a harmonizing directive. Moreover, 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.
51 Finally, it must be examined whether, as the United Kingdom in particular observes, there
are reasons specific to Directive 83/189 which preclude it from being interpreted as rendering
technical regulations adopted in breach of the directive inapplicable to third parties.
52 In this regard, it has already been observed that if such regulations were not enforceable
against third parties, this would create a legislative vacuum in the national legal system in
question and could therefore entail serious drawbacks, particularly where safety regulations
were concerned.
53 This argument cannot be accepted. A Member State may use the urgent-case procedure
provided for in Article 9(3) of Directive 83/189 where, for reasons defined by that provision,
it considers it necessary to prepare technical regulations in a very short space of time which
must be enacted and brought into force immediately without any consultations being possible.
54 In view of the foregoing considerations, it must be concluded 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.
55 The answer to the fifth and sixth questions must therefore be that Articles 8 and 9 of
Directive 83/189 are to be interpreted as meaning that 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.
“triangular effect”; limited horizontal direct effect???
 an individual can plead directive in an action against another individual;
 directive does not directly impose legal obligations on individuals;
 directive is invoked to preclude the application of conflicting provisions of national
law.
C-443/98 Unilevel
The directive was invoked to prevent the enforcement of national regulation which, although
properly notified, had been adopted in breach of a standstill clause under Directive 83/189.
The contract was for delivery of a quantity of olive oil, and the olive oil delivered by the
plaintiff was labeled in a way which complied with EC law, but not with the contested
Italian labeling legislation. The directive was invoked to in order to have national law
24
misapplied. It would result in the imposition of contractual obligations on the defendant
which would not have been imposed had the national law been applied.
45 It is therefore necessary to consider, secondly, whether the inapplicability of technical
regulations adopted in breach of Article 9 of Directive 83/189 can be invoked in civil
proceedings between private individuals concerning contractual rights and obligations.
46 First, in civil proceedings of that nature, application of technical regulations adopted in
breach of Article 9 of Directive 83/189 may have the effect of hindering the use or
marketing of a product which does not conform to those regulations.
47 That is the case in the main proceedings, since application of the Italian rules is liable to
hinder Unilever in marketing the extra virgin olive oil which it offers for sale.
48 Next, it must be borne in mind that, in CIA Security, the finding of inapplicability as a
legal consequence of breach of the obligation of notification was made in response to a
request for a preliminary ruling arising from proceedings between competing undertakings
based on national provisions prohibiting unfair trading.
49 Thus, 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.
50 Whilst it is true, as observed by the Italian and Danish Governments, that a directive
cannot of itself impose obligations on an individual and cannot therefore be relied on as such
against an individual (see Case C-91/92 Faccini Dori [1994] ECR I-3325, paragraph 20),
that case-law does not apply where non-compliance with Article 8 or Article 9 of Directive
83/189, which constitutes a substantial procedural defect, renders a technical regulation
adopted in breach of either of those articles inapplicable.
51 In such circumstances, and unlike the case of non-transposition of directives with which
the case-law cited by those two Governments is concerned, 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.
52 In view of all the foregoing considerations, the answer to the question submitted must be
that 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.
C-201/02 R (Delena Wells) v. the Secretary of State for Transport, Local Government
and the Regions
25
The case concerned Directive 85/337. It required assessment of the effects of public and
private projects on environment before planning consent was given. Planning permission
was given for mining operations without such an assessment. Wells sought the revocation of
the planning consent on the ground that the directive had not been complied with.
54 By its fourth and fifth questions, which it is appropriate to consider together, the referring
court essentially asks whether, in circumstances such as those of the main proceedings, an
individual may, where appropriate, rely on Article 2(1) of Directive 85/337, read in
conjunction with Articles 1(2) and 4(2) thereof, or whether the principle of legal certainty
precludes such an interpretation. The direct effect of Article 2(1) of Directive 85/337, read in
conjunction with Articles 1(2) and 4(2)
55 According to the United Kingdom Government, acceptance that an individual is entitled to
invoke Article 2(1) of Directive 85/337, read in conjunction with Articles 1(2) and 4(2)
thereof, would amount to inverse direct effect directly obliging the Member State concerned,
at the request of an individual, such as Mrs Wells, to deprive another individual or
individuals, such as the owners of Conygar Quarry, of their rights.
56 As to that submission, the principle of legal certainty prevents directives from creating
obligations for individuals. For them, the provisions of a directive can only create rights (see
Case 152/84 Marshall [1986] ECR 723, paragraph 48). 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 (see, to this effect, Case C-221/88 Busseni [1990] ECR I-495, paragraphs 23 to 26, and
Case C-97/96 Daihatsu Deutschland [1997] ECR I-6843, paragraphs 24 and 26).
57 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 (see to this effect, in particular, Case
103/88 Fratelli Costanzo [1989] ECR 1839, paragraphs 28 to 33, WWF and Others, cited
above, paragraphs 69 and 71, Case C-194/94 CIA Security International [1996] ECR I-2201,
paragraphs 40 to 55, Case C-201/94 Smith & Nephew and Primecrown [1996] ECR I-5819,
paragraphs 33 to 39, and Case C-443/98 Unilever [2000] ECR I-7535, paragraphs 45 to 52).
58 In the main proceedings, the obligation on the Member State concerned to ensure that the
competent authorities carry out an assessment of the environmental effects of the working of
the quarry is not directly linked to the performance of any obligation which would fall,
pursuant to Directive 85/337, on the quarry owners. The fact that mining operations must be
halted to await the results of the assessment is admittedly the consequence of the belated
performance of that State's obligations. Such a consequence cannot, however, as the United
Kingdom claims, be described as inverse direct effect of the provisions of that directive in
relation to the quarry owners.
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