INDIRECT EFFECT IN PRE-ACCESSION TIMES Tamara Ćapeta Excerpts from cases

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

Indirect effect in the EU Meaning Meaning Which types of Community rules have indirect effect Which types of Community rules have indirect effect Which national law is affected by indirect effect Which national law is affected by indirect effect Are there limits Are there limits Justification Justification Motivation Motivation

Case 14/83 Von Colson « 26 (…) in applying the national law and in particular the provisions of a national law specifically introduced in order to implement directive No 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189.» « 26 (…) in applying the national law and in particular the provisions of a national law specifically introduced in order to implement directive No 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189.»

Case C-106/89 Marleasing «8 (…) in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.» «8 (…) in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.»

Justification for obligation of conform interpretation

Article 10 TEC (ex Article 5) “Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. “Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.

Case C-91/92 Faccini Dori “26 However, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. (…)“ “26 However, the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. (…)“

Case C-334/92 Wagner Miret «20 (…) when it interprets and applies national law, every national court must presume that the State had the intention of fulfilling entirely the obligations arising from the directive concerned» «20 (…) when it interprets and applies national law, every national court must presume that the State had the intention of fulfilling entirely the obligations arising from the directive concerned»

Limits of comfort interpretation

Case 14/83 Von Colson: « 28 (…) It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.« « 28 (…) It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.«

Case 80/86 Kolpinghuis Nijmegen: «13 (…) obligation on the national court to refer to the content of the directive when interpreting the relevant rules of its national law is limited by the general principles of law which form part of Community law and in particular the principles of legal certainty and non-retroactivity. Thus the court ruled in its judgment of 11 June 1987 in case 14/86 Pretore de Salo v X... that a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive «. «13 (…) obligation on the national court to refer to the content of the directive when interpreting the relevant rules of its national law is limited by the general principles of law which form part of Community law and in particular the principles of legal certainty and non-retroactivity. Thus the court ruled in its judgment of 11 June 1987 in case 14/86 Pretore de Salo v X... that a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive «.

C-105/03 Pupino 47 The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. 47 The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem.

Case C-105/03 Pupino 47 (cont.) That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision. 47 (cont.) That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.