EU’S JUDICIAL SYSTEM II
Invocability Forms before National Courts
- Substitution Invocability (=Direct Effect)
Established by ECJ, Van Gend en Loos (1963): in this case, the ECJ shaped a “new legal order” which is characterized by the direct effect of a whole series of provisions applicable to nationals as well as to MS themselves.
Direct effect entails the obligation for a Court (or any other national authority) to apply the EU law provision instead of any other national provision contrary to EU Law (=obligation to set aside national law + to apply EU law instead).
Direct effect proves to be:
- a powerful instrument allowing EU law to penetrate national systems
- applying direct effect is assigned to national courts which become the basic institutional guarantee that individual rights conferred by EU law will be respected by MS
Direct effect is different depending on the EU law concerned:
- Unconditional direct effect
Recognized for Regulations in ECJ, Van Dijk (1964)and Decisions in ECJ, Grad (1970), stemming from the very definition of those acts in the Treaty (art.288TFEU):
“A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.”
“A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.”
- Conditional direct effect
The question whether Treaty provisions present direct effect depends upon their characteristics. In order for the national judge to be obliged to substitute a treaty provision to any contrary national law, this treaty provision must:
a)confer rights to individuals
b)be clear, precise and unconditional
That was the case in Van Gend en Loos for article 12TEEC.
On the contrary, vague treaty provisions or provisions that need national implementation (= non self-executing) cannot produce direct effect. That is, a plaintiff cannot invoke them before a national court in order to ask for the national contrary law to be set aside.
- Exceptional direct effect
Article 288TFEU expressly states that:
“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.”
This means that Directives leave a wide margin of manoeuvre to MS as to the ways they wish to meet the objectives set by a Directive. When a Directive is correctly implemented, individuals can invoke directly the implementation act before the national judge.
What if a Directive is not correctly implemented?
Case n.1: Lack of implementation in the deadline set by the act (normally 2 years)
Case n.2: Poor implementation (i.e the directives’ objectives are not met, obligatory provisions are not stated in the implementation act etc.)
How can individuals benefit from rights conferred by a directive, in cases where the directive is not correctly implemented?
In these cases, exceptionally, direct effect can be recognized if a number of conditions are met:
a)expiration of the implementation deadline – ECJ, Van Duyn, 1974 + ECJ, Ratti, 1979
b)directive provisions must be clear, precise and unconditional - ECJ, Van Duyn, 1974 + ECJ, Ratti, 1979
c)direct effect can only be invoked by an individual plaintiff versus the MS (not versus individuals) –ECJ, Faccini Dori, 1994
d)direct effect can only be invoked by an individual plaintiff versus the MS (not the other way round) – ECJ, Berlusconi, 2005
- ExclusionInvocability
An individual may invoke EU law asking the national judge to set aside any contrary provision of national law, without applying EU law instead.
Established in ECJ, Inter-environnement Wallonie, 1997 : ECJ distinguishes between the substitution invocability and the exclusion invocability.
Exclusion invocability is mostly used for directives at the stage where they cannot develop a full direct effect because the implementation deadline has not yet expired.
This means that, during the implementation period, MS must set aside any national law contravening the directive’s objectives. If a MS doesn’t comply with this obligation, an individual can ask from the national judge to set aside the national provisions concerned.
After the expiration of the implementation period, an individual may either rely on the national implementation act (if the directive is well implemented), or invoke, under the conditions discussed below, the direct effect of directive’s provisions (if the directive is poorly implemented).
- Interpretation Invocability
An individual may invoke/rely on EU Law in order to ask the national judge to interpret national law in conformity with EU Law.
Expressly stated in ECJ, Von Colson et Kamann, 1984: unconditional and broad obligation for the national judge (even earlier the obligation for the national judge to interpret national law in conformity with EU law stemmed from the loyal cooperation principle).
3 specific limits:
a)interpretation invocability cannot lead to the complete denaturation of national law: if national law says “white”, it cannot be interepreted as “black” in order to suit the meaning of EU law
b)interpretation invocability cannot lead to an aggravation of criminal penalties
c)interpretation invocability suggests that there is relevant national law to be interpreted.
In practice, before examining all other forms of invocability, national judge starts with the interpretative, because it can lead to the EU-National law conformity mildly.
- Reparation (Liability)Invocability
Established by ECJ, Francovich et Bonifaci, 1991:
Preliminary ruling/Facts:
Under the Insolvency Protection Directive 80/987 (now 2008/94/EC) EU member states were expected to enact provisions in their national law to give a minimum level insurance for employees who had wages unpaid if their employers went insolvent.
Mr Francovich and Mr Bonifaci had both worked for two different companies that had gone bankrupt and they couldn’t get paid, because the company liquidators had informed them that no money was left. At this point, the Directive was not implemented, even if the implementation period had expired.
a)Directive’s provision on the individual right to claim wedges when the employer got insolvent was not sufficiently clear and precise: no direct effect
b)National law did not include any provision contrary to this individual right: no exclusion effect + no interpretation effect
The ECJ established MS liability for not implementing the Directive, and causing thus damage to the individual plaintiffs.
This form of Liability Invocability is applicable independently of the sate institution responsible for the damage.
Examples:
-In case of a national law contrary to EU law and having caused damage to individuals, MS liability is founded and individuals can ask for compensation from their national judge (and following national law provisions related to internal state liability) – ECJ, Brasserie du Pecheur, 1996
-In case of a regulatory act is produced by the central government, MS liability can also be engaged(ECJ, Hedley Lomas, 1996)
-In case of a regulatory act produced by a local authority, MS liability can also be engaged (ECJ, Haim, 2000)
-In case of a ruling coming from a national court (ruling in last resort), MS liability can be engaged (ECJ, Kobler, 2003).
ECJ, Kobler, 2003
Facts:Mr Köbler has been employed since 1 March 1986 as an ordinary university professor in Innsbruck (Austria). In 1996 he applied for the special length-of-service benefit for university professors. The grant of that benefit is dependent under Austrian law on the completion of 15 years' service solely in Austrian universities. Mr Köbler had completed the requisite length of service if the duration of his service in universities of other Member States were taken into consideration.Upon refusal of his application Mr Köbler brought proceedings before the Austrian courts, arguing that such a requirement constituted indirect discrimination contrary to Community law.
On that point the Verwaltungsgerichtshof, administrative court of last instance, made a reference to the Court of Justice of the European Communities. Following a judgment of the Court in a similar case, the Austrian court withdrew its request for a preliminary ruling. By a judgment of 24 June 1998 the Verwaltungsgerichtshof dismissed Mr Köbler’s action on the ground that the special length-of-service increment was a loyalty bonus which justified a derogation from the provisions on freedom of movement for workers.
Mr Köbler brought an action for damages before the Landesgericht für Zivilrechtssachen, Vienna, against the Republic of Austria on the ground that the judgment of the Verwaltungsgerichtshof was contrary to Community law. The referring court submitted certain questions to the Court in that connection.
ECJ established that Member States are obliged to make good damage caused to individuals by infringements of Community law attributable to national courts adjudicating at last instance.
In fact, the essential role played by the judiciary in the protection of the rights derived by individuals from Community law would be weakened if individuals were not able, under certain conditions, to obtain reparation for damage caused by an infringement of Community law attributable to a court of a Member State adjudicating at last instance. In such a case individuals must have the possibility of rendering the State liable in order to obtain legal protection of their rights.
Conditions:
-the rule of law infringed must be intended to confer rights on individuals;
-the breach must be sufficiently serious;
-and there must be a direct causal link between the breach of the obligation incumbent on the State and the loss or damage sustained.
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-State liability can be incurred only in the exceptional case where the national court has manifestly infringed the applicable law and the Court’s case-law in the matter.
It is for the legal system of each Member State to designate the court competent to determine disputes relating to that area of law.
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