The Principle of Indirect Effect
Indirect effect is an interpretative tool by which individuals may use to rely on Directives against other individuals.
Article 4(3) TEU - as interpreted by the ECJ
National courts are under a duty to interpret national law consistently with EU LAW, so far as it is possible to do so, whether or not the Directive has direct effect.
Indirect effect is a principle on the interpretation of national law.
The use of the principle is left with the court's discretion.
Article 4(3) TEU - as interpreted by the ECJ
National courts are under a duty to interpret national law consistently with EU LAW, so far as it is possible to do so, whether or not the Directive has direct effect.
Indirect effect is a principle on the interpretation of national law.
The use of the principle is left with the court's discretion.
Von Colson v Land Nordrhein-Westfalen
The ECJ established indirect effect in this case.
Facts
Facts
- Sex discrimination claim - female workers rejected from a job purely for being female
- Claimants sought to rely on Article 6 Equal Treatment Directive but it didn't have direct effect as Van Gend En Loos was not satisfied. The Directive was not sufficiently clear and precise - victims of sex discrimination must have "effective remedy"
- German law already provided for a remedy - but it was for travel expenses only
- Indirect effect
Implementing vs. Non Implementing Legislation
Implementing legislation - Legislation (e.g. Statute) passed after the deadline to implement the Directive has expired
Non-implementing legislation - Legislation passed before the deadline to implement the Directive has expired
Non-implementing legislation - Legislation passed before the deadline to implement the Directive has expired
Why distinguish types of legislation?
The traditional approach of the UK courts
The purposive approach and thus indirect effect could not be used for non-implementing legislation as shown by Duke v GEC Reliance where the House of Lords refused to "distort the meaning of national law". They UK courts were however willing to use the purposive approach for implementing legislation (Lister v Forth Dry Dock and Engineering Ltd).
Marleasing
The ECJ held "national court must interpret national law in light of any relevant directive, as far as it is possible to do so".
Marleasing also widened the scope of the doctrine by adding onto von Colson - the obligation is on the Courts regardless of the fact the national provisions were adopted before or after the Directive. In Marleasing, no national law had been passed at all to comply with the Directive. It was held that having national legislation passed specifically in the name of the Directive was not necessary.
Marleasing was confirmed in Webb in the English Courts:
Webb v EMO Air Cargo (UK) Ltd
Facts: An employee was sacked because she was pregnant - there was no express UK legislation regarding the matter.
Held: The House of Lords interpreted UK legislation (Sexual Discrimination Act 1975) to be consistent with the Equal Treatment Directive 1976. Created a "back door" way of implementing EU legislation.
The House of Lords interpreted an earlier UK Act to conform with a later Directive.
The purposive approach and thus indirect effect could not be used for non-implementing legislation as shown by Duke v GEC Reliance where the House of Lords refused to "distort the meaning of national law". They UK courts were however willing to use the purposive approach for implementing legislation (Lister v Forth Dry Dock and Engineering Ltd).
Marleasing
The ECJ held "national court must interpret national law in light of any relevant directive, as far as it is possible to do so".
Marleasing also widened the scope of the doctrine by adding onto von Colson - the obligation is on the Courts regardless of the fact the national provisions were adopted before or after the Directive. In Marleasing, no national law had been passed at all to comply with the Directive. It was held that having national legislation passed specifically in the name of the Directive was not necessary.
Marleasing was confirmed in Webb in the English Courts:
Webb v EMO Air Cargo (UK) Ltd
Facts: An employee was sacked because she was pregnant - there was no express UK legislation regarding the matter.
Held: The House of Lords interpreted UK legislation (Sexual Discrimination Act 1975) to be consistent with the Equal Treatment Directive 1976. Created a "back door" way of implementing EU legislation.
The House of Lords interpreted an earlier UK Act to conform with a later Directive.
Pickstones v Freemans plc (HL)
Equal Pay Directive - equal pay for work of equal value
UK implementing legislation: Equal Pay Act 1970 - equal pay for same work
Using the purpose approach, indirect effect applied and the claimants gained remedy.
UK implementing legislation: Equal Pay Act 1970 - equal pay for same work
Using the purpose approach, indirect effect applied and the claimants gained remedy.
Lister v Forth Dry Dock and Engineering Ltd
Pfeiffer
The ECJ added that the obligation was not restricted to the provisions themselves but also extend to "national law as a whole in order to asses to what extent it may be applied so as not to produce a result contrary to that sought by the directive".
Limitations of Indirect Effect
Where national legislation clearly conflicts with the relevant Directive
- Wagner Miret v Fondo De Garantia Salarial
Where indirect effect would impose criminal liability
- Luciano Arcaro (Criminal Proceedings Against)
Facts: Arcaro was prosecuted in criminal proceedings.
Under italian implementing legislation he was Not Guilty
Under the Directive he was Guilty
Held: The ECJ said indirect effect cannot impose criminal liability.
The limitations of Marleasing
- Wagner Miret v Fondo De Garantia Salarial
Where indirect effect would impose criminal liability
- Luciano Arcaro (Criminal Proceedings Against)
Facts: Arcaro was prosecuted in criminal proceedings.
Under italian implementing legislation he was Not Guilty
Under the Directive he was Guilty
Held: The ECJ said indirect effect cannot impose criminal liability.
The limitations of Marleasing
- Limits of natural language (Contra legum principle)
- Non-imposition of criminal liability
- Non-retroactivity