INDIRECT EFFECT IN INDIRECT EFFECT IN PRE-ACCESSION TIMESPRE-ACCESSION TIMES

Tamara ĆapetaTamara Ćapeta

Excerpts from casesExcerpts from cases

Which national law should be Which national law should be interpreted in conformity with EU interpreted in conformity with EU law?law?

Indirect effect in the EUIndirect effect in the EU

• MeaningMeaning• Which types of Community rules Which types of Community rules

have indirect effecthave indirect effect• Which national law is affected by Which national law is affected by

indirect effectindirect effect• Are there limitsAre there limits• JustificationJustification• MotivationMotivation

Case 14/83 Von ColsonCase 14/83 Von Colson

• « 26 (…) in applying the national law « 26 (…) in applying the national law and and in particular the provisions of a in particular the provisions of a national law specifically introduced in national law specifically introduced in order to implement directiveorder to implement directive No No 76/207, national courts are required 76/207, national courts are required to interpret their national law in the to interpret their national law in the light of the wording and the purpose light of the wording and the purpose of the directive in order to achieve of the directive in order to achieve the result referred to in the third the result referred to in the third paragraph of article 189 .»paragraph of article 189 .»

Case C-106/89 MarleasingCase C-106/89 Marleasing

• «8 (…) in applying national law, «8 (…) in applying national law, whether the provisions in question whether the provisions in question were adopted before or after the were adopted before or after the directivedirective, the national court called , the national court called upon to interpret it is required to do so, upon to interpret it is required to do so, as far as possible, in the light of the as far as possible, in the light of the wording and the purpose of the wording and the purpose of the directive in order to achieve the result directive in order to achieve the result pursued by the latter and thereby pursued by the latter and thereby comply with the third paragraph of comply with the third paragraph of Article 189 of the Treaty.»Article 189 of the Treaty.»

Justification for obligation of Justification for obligation of conform interpretationconform interpretation

Article 10 TEC (ex Article 5)Article 10 TEC (ex Article 5)

• ““Member States shall take all Member States shall take all appropriate measures, whether appropriate measures, whether general or particular, to ensure general or particular, to ensure fulfilment of the obligations arising fulfilment of the obligations arising out of this Treaty or resulting from out of this Treaty or resulting from action taken by the institutions of the action taken by the institutions of the Community. They shall facilitate the Community. They shall facilitate the achievement of the Community’s achievement of the Community’s tasks.tasks.

Case C-91/92 Faccini DoriCase C-91/92 Faccini Dori

• ““26 However, the Member States' 26 However, the Member States' obligation arising from a directive to obligation arising from a directive to achieve the result envisaged by the achieve the result envisaged by the directive and their duty under directive and their duty under article 5article 5 of of the treaty to take all appropriate the treaty to take all appropriate measures, whether general or particular, measures, whether general or particular, to ensure the fulfilment of that obligation, to ensure the fulfilment of that obligation, is is binding on all the authorities of binding on all the authorities of Member StatesMember States includingincluding, for matters , for matters within their jurisdiction, within their jurisdiction, the courtsthe courts. . (…)“(…)“

Case C-334/92 Wagner MiretCase C-334/92 Wagner Miret

• «20 (…) when it interprets and applies «20 (…) when it interprets and applies national law, every national court must national law, every national court must presume that the State had the presume that the State had the intention of fulfilling entirely the intention of fulfilling entirely the obligations arising from the directive obligations arising from the directive concerned»concerned»

Limits of comfort interpretationLimits of comfort interpretation

Case 14/83 Von Colson:Case 14/83 Von Colson:

• « 28 (…) It is for the national court to « 28 (…) It is for the national court to interpret and apply the legislation interpret and apply the legislation adopted for the implementation of adopted for the implementation of the directive in conformity with the the directive in conformity with the requirements of Community law, requirements of Community law, in in so far as it is given discretion to do so far as it is given discretion to do so under national lawso under national law.«.«

Case 80/86 Kolpinghuis Nijmegen: Case 80/86 Kolpinghuis Nijmegen:

• «13 (…) obligation on the national court to refer «13 (…) obligation on the national court to refer to the content of the directive when interpreting to the content of the directive when interpreting the relevant rules of its national law the relevant rules of its national law is limited by is limited by the general principles of law which form part of the general principles of law which form part of Community lawCommunity law and in particular the principles and in particular the principles of of legal certainty and non-retroactivitylegal certainty and non-retroactivity. Thus the . Thus the court ruled in its judgment of 11 June 1987 in court ruled in its judgment of 11 June 1987 in case 14/86 Pretore de Salo v X ... that a case 14/86 Pretore de Salo v X ... that a directive cannot, of itself and independently of a directive cannot, of itself and independently of a national law adopted by a Member State for its national law adopted by a Member State for its implementation, have implementation, have the effect of determining the effect of determining or aggravating the liability in criminal lawor aggravating the liability in criminal law of of persons who act in contravention of the persons who act in contravention of the provisions of that directive «.provisions of that directive «.

C-105/03 PupinoC-105/03 Pupino

• 47     The obligation on the national court to 47     The obligation on the national court to refer to the content of a framework decision refer to the content of a framework decision when interpreting the relevant rules of its when interpreting the relevant rules of its national law ceases when the latter cannot national law ceases when the latter cannot receive an application which would lead to a receive an application which would lead to a result compatible with that envisaged by that result compatible with that envisaged by that framework decision. In other words, the framework decision. In other words, the principle of interpretation in conformity with principle of interpretation in conformity with Community law cannot serve as the basis for Community law cannot serve as the basis for an interpretation of national law an interpretation of national law contra legemcontra legem. .

Case C-105/03 PupinoCase C-105/03 Pupino

• 47 (cont.) That principle does, 47 (cont.) That principle does, however, require that, where however, require that, where necessary, the national court consider necessary, the national court consider the whole of national law in order to the whole of national law in order to assess how far it can be applied in assess how far it can be applied in such a way as not to produce a result such a way as not to produce a result contrary to that envisaged by the contrary to that envisaged by the framework decision.framework decision.