Chapter 8 Suggested approaches to end-of-chapter questions

Remedies: direct and indirect effects and state liability

1. Are regulations necessarily directly effective? Give reasons for your answer.

No as they still need to satisfy the criteria for direct effects first laid down by the CoJ in the Van Gend en Loos case.

2. Has the application of the doctrine of direct effects blurred the distinction between regulations and directives? If so, does it matter?

No, in that regulations are still generally applicable whereas directives are not. If horizontal direct effects of directives had been recognised by the CJEU it might have done, in which case then there would be little point in having two different forms of law and the flexibility of directives may have been lost.

3. Look at Article 35 and Article 60 TFEU. Are they capable of direct effect? Explain why or why not, as appropriate.

Article 35 TFEU satisfies the Van Gend en Loos criteria as clear and precise etc., whereas Article 60 TFEU is conditional and does not therefore satisfy the criteria.

4. Distinguish between horizontal and vertical direct effects. Do these terms apply to all forms of EU law? If not, why not?

Vertical apply between individuals and the state and horizontal between individuals. Horizontal does not apply to directives which obligate member states and not individuals.

5. How far have the drawbacks which resulted from the denial of horizontal direct effects of directives been overcome by the CJEU’s decisions subsequent case law?

To a limited extent by extending the definition of the State under the Foster v British Gas principle and more so by indirect effects form Von Colson and state liability from Francovich.

6. What are indirect effects and how are they supposed to assist individuals in realizing EU legal rights?

They are an obligation on all organs of state, including the national courts to interpret national law to read in conformity with EU law obligations, including those contained in Directives.

7. What difficulties may be faced by national courts in trying to operate indirect effects? Give case citations to support your answer.

The Court of Justice held in Case 80/86, Public Prosecutor v Kolpinghuis Nijmegen BF that the principle of indirect effects could not be applied by a member state to support the retroactive prosecution of a Dutch firm for stocking adulterated mineral water which was in breach of an EU directive. The implementation period had expired and the Netherlands should have implemented it, but had not, it would not those is such circumstances give rise to indirect effects. The Court of Justice acknowledged the unsuitability of the Von Colson sympathetic interpretation for all cases. In Case C-168/95 Criminal Proceedings against Luciano Arcaro, the Court of Justice acknowledged that the limits of the Von Colson principle would be overreached if there was a retroactive interpretation of national law in the light of the directive which had not been implemented by the member states and which would have imposed criminal liability on an individual, confirming the limitation recognized in the Kolpinghuis case.

8. To what extent does the doctrine of 'state liability' first established in the Francovich case add to the range of individual remedies in EU Law?

Very much, by providing an alternative remedy to those individuals who are caused loss by a member states' failure to comply with EU law and where any other EU law remedy may not be available.

9. What criteria must be satisfied before a claim under state liability will succeed and how is this judged?

The factors that should be taken into account by the national court assessing this are:
• the clarity and precision of the rule breached;
• the measure of discretion;
• whether the infringement and damage was intentional or involuntary;
• whether the error in law was excusable or inexcusable;
• whether there was any contribution to the problem by the EU institutions and;
• whether any incompatible national law was being maintained.

10. To what extent is the principle of national procedural autonomy respected in the EU legal order? To what extent should it be?

National procedural autonomy is still the general rule and is still respected under the EU legal order but the Court of Justice has intruded into the area by developing the demands for effectiveness and equivalence or by providing new remedies in the member states with the aim of ensuring a balance between the objective to protect the national procedural autonomy and at the same time to protect the effectiveness of EU law. Until there is an agreement by all member states to try to harmonize procedural law, a very difficult task at best, the ad hoc case law development we have witnessed is not likely to change.

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