#16132 - Preliminary Reference Procedure Direct Effect - European Law

Introduction 3

Summary 3

I - Preliminary References 3

Weatherill Ch. 7; Chalmers et al, Ch. 4. 4

II - Direct Effect, Indirect Effect and Incidental Effect 8

A - Direct Effect 9

1 - General 9

Arts 288, 296-299 TFEU 10

| B. de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’ 10

Para I – Direct effect 11

I – Evolution of Direct Effect 11

2 – Direct effect and sources 11

a – Treaty 11

b – Directives 12

c – General principles 12

3 – Effet utile of direct effect 12

Para II – Supremacy 12

Para III – Reception of the doctrine at national level 12

| S. Prechal, “Does Direct Effect Still Matter?” (2000) 37 CML Rev 1047 14

| *M. Dougan, ‘When worlds collide!’ (2007) 44 CMLRev 931; 15

I – Which model is more conceptually alluring? 15

A – Exclusion vs substitution 15

B – The irrelevance of the threshold criteria to exclusionary situations 16

C – the deeper underpinnings of the primacy and trigger models 16

II – Which model is better supported by caselaw? 17

| Mancini, “The Making of a Constitution for Europe” (1989) 26 CML Rev 595 18

| D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’ 18

| Case 26/62 Van Gend en Loos; 20

| Case 43/75 Defrenne v. Sabena [1976] ECR 455; 21

I – On direct effect of Art 157 22

II – On not being bothered by the horizontal nature of the proceedings 22

III – On the absence of retroactivity 22

2 - The special case of Directives 22

| Mancini (supra) 23

| Case 41/74 Van Duyn [1974] ECR 1337 23

I – On the direct effect of Article 45 TFEU 23

II – On the direct effect of a Directive 23

| CE, Ass., 22 décembre 1978, Ministre de l’intérieur c/ Cohn-Bendit 24

| CE, Ass., 30 octobre 2009, Mme Perreux 25

| Case 148/78 Ratti [1979] ECR 1629; 25

I – On directives having direct effect in principle (yes) 26

II – On directives having direct effect before transposition deadline (no) 26

| Case 152/84 Marshall [1986] ECR 723; 26

| Case C-188/89 Foster v. British Gas [1990] ECR I-3313. 27

| *Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3325 28

| *Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835; 29

| Case C-144/04 Mangold [2005] ECR I-9981 30

| Case C-555/07 Seda Kücükdeveci [2010] ECR I-365 30

| Case C‑176/12 Association de médiation sociale, judgment of 15 January 2014 30

B - Indirect Effect (obligation of consistent interpretation) 30

| Case C-106/89 Marleasing SA v. La Comercíal [1990] ECR I-4135; 31

| Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969 (criminal law limit) 32

| Cases C-387 etc/02 Silvio Berlusconi [2005] ECR I-3565; 32

| Case C-456/98 Centrosteel v. Adipol [2000] ECR I-6007 32

| Cases C-397/01 to C-403/01 Pfeiffer etc. [2004] ECR I-8835 (whole body of law) 32

| Case C-212/04 Adeneler [2006] ECR I-6057 (duty to refraim from compromising EU law) 34

| C-268/06 Impact [2008] ECR I-2483 (see paras. 100-103 on the rule against contra legem interpretation); 34

| Case C-282/10 Dominguez (24 January 2012) 34

| Case C-441/14 Dansk Industri (this is the Ajos preliminary reference!) 35

C - Incidental Effect/ application in “triangular” situations 36

| Case C-194/94 CIA Security International [1996] ECR I-2201; 36

| Case C-443/98 Unilever Italia v. Central Food [2000] ECR I-7535 37

| Case C-159/00 Sapod Audic v Eco-Emballages SA 39

| *Case C-201/02 R (Wells) [2004] ECR I-723 40

I – On the absence of direct effect of Directives 40

II – On the incidental effect of directives 40

| Case C-152/07 Arcor [2008] ECR I-5959 40

| Dubout, “L’invocabilité d’éviction des directives dans les litiges horizontaux” RTD Eur. 46(2) 277 (2010) 41

I. - Les complications du régime de l'éviction 41

A. - Des complications avérées : l'éclatement du régime de l'éviction 41

B. - Des complications à venir : l'aménagement du régime de l'éviction 41

II. - Les contradictions du recours à l'éviction 42

A. - L'ambivalence des fondements du recours à l'éviction 42

B. - L'incohérence des prolongements du recours à l'éviction 42

| P. Craig, ‘The legal effect of Directives: policy, rules and exceptions’ (2009) 34 ELRev 349. 42

Questions 43

Notes 43

The functions of the preliminary reference procedure:

1. Development of EU law: in 2012, 64% of cases the CJEU heard were preliminary reference cases, and this is its main avenue for developing EU law, for unifying schema and categories of cases. But this places the CJEU at a very powerful position, in that it essentially has a monopoly over the development of the EU legal order. This prompted concerns:

   1. Judicial activism: two related claims –

      1. Judicial legislation: the allegation is that the CJEU sometimes engages in contra legem interpretations of EU law. Perhaps these concerns are prompted by the fact that it is very difficult to amend a disliked CJEU judgment (requires Treaty amendment or passing a new EU legislation depending on what is being interpreted) so there is perhaps a need for greater judicial sensitivity.

      2. It pushes towards greater integration, taking insufficient account of other interests:

         1. A “euro-law industry” has been more active in bringing preliminary references than other actors, so as to create a tilt in favour of preliminary references arguing for provisions to cover activities not previously anticipated

         2. Teleological reasoning by the CJEU, interpreting legislation in light of some greater telos (a greater objective)

Conway: several fundamental problems of teleological reasoning – (1) uncertainty and unpredictability because the telos (ends) can be understood in different ways and at different levels of generality, and the CJEU often identifies the highest level of generality while ignoring the contestability of the extent of legal integration. (2) it creates an “epistemological asymmetry” in how EU law is interpreted because ordinary citizens do not engage in meta-teleological interpretation but adhere to lex specialis (the most specific, relevant legal provisions).

But teleological reasoning also has its supporters, who point to the institutional role of the CJEU in securing a functional legal order. But the critics and supporters talk past each other: even if the teleological interpretation is justified, it is still slippery and unpredictable.

2. Lack of expertise: because it hears cases on a very wide array of activities; the advantage of a single court is ensuring coherence and generality of important EU principles, but there is also a greater danger of mistakes as the Court doesn’t have the knowledge required to appreciate the nuances of different fields of law. Ongoing debate as to whether specialized courts should develop: the General Court (trade, competition and trade mark law) and Unified Patent Court (patents) are steps in this direction, but still debates as to whether this balance is correct.

2. Judicial review of EU institutions (Article 267 TFEU): the CJEU has jurisdiction to rule on the validity of EU legislation and administrative acts of Union institutions. There is a duty on national courts to allow challenges to the legality of EU acts, and sometimes to refer these in preliminary references, making the procedure a central instrument for judicial review (as private parties do not need to meet the restrictive locus standi requirements of bringing actions in front of the CJEU).

3. Preserving the unity of EU law: uniform application of EU law requires (according to the CJEU” that EU law “normally be given an autonomous and uniform interpretation throughout the EU” (Commission v Spain). This can be threatened in two ways: (1) different MSs interpreting a provision differently, (2) one MS saying a provision is valid and another invalid. The CJEU’s role therefore has two elements: interpretation and validity.

4. Dispute resolution: Article 267 grants national courts a monopoly on adjudication; the CJEU merely rules on points of EU law. This means that the procedure will be longer than it otherwise would tension. Thus, Article 267(2) has been interpreted to mean that a reference should only be made if that point of EU law meaningfully contributes to the resolution of the dispute (Foglia (no. 2)). This was contentious because it allowed the CJEU to (1) review the national court’s decision to refer and (2) examine the factual background to the dispute debate about whether this transgressed on the national court’s monopoly on fact-finding. This line of caselaw has subsequently been attenuated (Leclerc Siplec, Eau de Cologne).

How well is this managed? This depends on three factors: (1) the circumstances where references are made, (2) authority of CJEU’s judgments and (3) protection of litigants’ position pending findal judgment.

• Circumstances of referral:

  • Courts must refer:

    • Where it considers an EU measure may be invalid or

    • Courts against whose decision there is no judicial remedy in national law (Article 267(3)), which includes:

      • Highest courts of the nation

      • Any court where parties have been denied leave to appeal to a higher court

If courts make a sufficiently manifest mistake not to refer, then there can be damages against the state (Kobler), but this remedy might only be a paper one because the redress is against the state not the courts, so there is no direct incentive for the court in question to refer. Also, it would require a court of first instance to rule negatively on the actions of the senior court, which is quite implausible.

• Courts may refer: when they fall into Article 267(2), i.e. where there is a judicial remedy against their decision

EXCEPTION: courts that must otherwise refer do not have to...