The Principle of Indirect Effect
Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen
Principle of indirect effect.
Principle of consistent interpretation.
Von Colson Principle.
Concerned female social workers who had applied for posts at a male prison in West
Germany.
The authorities appointed 2 male candidates with lesser qualifications to these
posts, and the female social workers were unhappy about this.
The labour court found that there had been discrimination and awarded the
claimants compensation pursuant to the German Civil Code.
The section relied upon purported to implement the then equal treatment
directive between men and women as regards access to employment.
German court found that the section only enables it to award reimbursement
for travelling expenses incurred by the applicants in pursuing their
applications for the posts.
Court asked the European Court of Justice for clarification as to the
interpretation and direct effect of the then equal treatment directive 207/76.
Court held that national courts have to interpret the equal treatment
directive in the light of its wording and the purpose of the Directive.
Paragraph 26 – ‘The Member States’ obligation arising from a Directive to
achieve the result envisaged by the Directive and their duty under Article
[4(3) TEU 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’.
What Does Indirect Effect Mean?
Use of EU Law by national courts as an interpretative tool when applying national
law which contradicts directives.
The duty of consistent interpretation is a duty to give effect to a directive by indirect
means.
The provisions of the directive are not being relied upon by the applicants
directly before the national courts to enforce the rights that are provided and
granted to them through the directive.
It is for national courts to ensure that the rights enshrined in the directive is
actually ensured.
Courts have to interpret national law in order to give effect to a directive
Where a national legislator has failed to implement a directive, the task will be
(partly) transferred to the national judiciary.
This is to ensure that the member state in question complies with the
provisions of the directive.
National courts are here under an obligation to ‘implement’ the directive judicially
through a ‘European’ interpretation of national law.
Case 79/83 Dorit Harz v Deutsche Tradax GmbH.
, Court held that requirement in Article 4(3) TEU applies to all authorities of
Member States.
Basis?...
Article 4(3) TEU (ex Art 10 EC).
Pursuant to the principle of sincere cooperation, the Union and the Member
States shall, in full mutual respect, assist each other in carrying out tasks
which flow from the Treaties.
Principle of consistent interpretation/indirect effect.
Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA
Spanish case concerning an applicant that sought a declaration that the contracts
setting up La Comercial Internacional were void.
According to Marleasing, they were drawn up in order to default creditors.
La Comercial Internacional relied on Directive 151/68 designed to protect companies
and third parties from the adverse effects of the doctrine of nullity.
Spanish failed to implement the directive.
Spanish courts wanted to know whether the directive could nevertheless be directly
upheld against an individual by another individual.
National courts must, as far as possible, interpret national law in the light of
the wording and purpose of the directive, in order to achieve the result
pursued by the directive, while having regard to the usual methods of
interpretation, in its legal system give precedence to the method which
enables it to construe the national provision concerned in a manner
consistent with the directive.
Important to note whether the national law post-dated or pre-dated the
directive.
Spanish Civil Code pre-dated the directive, but had to be interpreted
in a way clearly not covered by it, to conform with the later un-
implemented directive.
Paragraph 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 it and thereby comply with
the third paragraph of Article 189 of the Treaty [now Article 288 TFEU]’.
National courts are required to do so as far as possible.
STOP! 1 - Case 80/86 Criminal Proceedings Against Kolpinghuis Nijmegen BV
A Dutch case where it was held that the principle of indirect effect of a directive
could not be applied by a member state to retroactively sanction the prosecution of
a Dutch firm for stocking adulterated mineral water in breach of a Community
directive.
Directive 777/80 – the approximation of the laws of member states relating
to the exploitation and marketing of natural mineral waters).
The implementation period expired and the Netherlands should have implemented
it, but they hadn’t.
Court of Justice held that it would not in such circumstances give rise to indirect
Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen
Principle of indirect effect.
Principle of consistent interpretation.
Von Colson Principle.
Concerned female social workers who had applied for posts at a male prison in West
Germany.
The authorities appointed 2 male candidates with lesser qualifications to these
posts, and the female social workers were unhappy about this.
The labour court found that there had been discrimination and awarded the
claimants compensation pursuant to the German Civil Code.
The section relied upon purported to implement the then equal treatment
directive between men and women as regards access to employment.
German court found that the section only enables it to award reimbursement
for travelling expenses incurred by the applicants in pursuing their
applications for the posts.
Court asked the European Court of Justice for clarification as to the
interpretation and direct effect of the then equal treatment directive 207/76.
Court held that national courts have to interpret the equal treatment
directive in the light of its wording and the purpose of the Directive.
Paragraph 26 – ‘The Member States’ obligation arising from a Directive to
achieve the result envisaged by the Directive and their duty under Article
[4(3) TEU 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’.
What Does Indirect Effect Mean?
Use of EU Law by national courts as an interpretative tool when applying national
law which contradicts directives.
The duty of consistent interpretation is a duty to give effect to a directive by indirect
means.
The provisions of the directive are not being relied upon by the applicants
directly before the national courts to enforce the rights that are provided and
granted to them through the directive.
It is for national courts to ensure that the rights enshrined in the directive is
actually ensured.
Courts have to interpret national law in order to give effect to a directive
Where a national legislator has failed to implement a directive, the task will be
(partly) transferred to the national judiciary.
This is to ensure that the member state in question complies with the
provisions of the directive.
National courts are here under an obligation to ‘implement’ the directive judicially
through a ‘European’ interpretation of national law.
Case 79/83 Dorit Harz v Deutsche Tradax GmbH.
, Court held that requirement in Article 4(3) TEU applies to all authorities of
Member States.
Basis?...
Article 4(3) TEU (ex Art 10 EC).
Pursuant to the principle of sincere cooperation, the Union and the Member
States shall, in full mutual respect, assist each other in carrying out tasks
which flow from the Treaties.
Principle of consistent interpretation/indirect effect.
Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA
Spanish case concerning an applicant that sought a declaration that the contracts
setting up La Comercial Internacional were void.
According to Marleasing, they were drawn up in order to default creditors.
La Comercial Internacional relied on Directive 151/68 designed to protect companies
and third parties from the adverse effects of the doctrine of nullity.
Spanish failed to implement the directive.
Spanish courts wanted to know whether the directive could nevertheless be directly
upheld against an individual by another individual.
National courts must, as far as possible, interpret national law in the light of
the wording and purpose of the directive, in order to achieve the result
pursued by the directive, while having regard to the usual methods of
interpretation, in its legal system give precedence to the method which
enables it to construe the national provision concerned in a manner
consistent with the directive.
Important to note whether the national law post-dated or pre-dated the
directive.
Spanish Civil Code pre-dated the directive, but had to be interpreted
in a way clearly not covered by it, to conform with the later un-
implemented directive.
Paragraph 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 it and thereby comply with
the third paragraph of Article 189 of the Treaty [now Article 288 TFEU]’.
National courts are required to do so as far as possible.
STOP! 1 - Case 80/86 Criminal Proceedings Against Kolpinghuis Nijmegen BV
A Dutch case where it was held that the principle of indirect effect of a directive
could not be applied by a member state to retroactively sanction the prosecution of
a Dutch firm for stocking adulterated mineral water in breach of a Community
directive.
Directive 777/80 – the approximation of the laws of member states relating
to the exploitation and marketing of natural mineral waters).
The implementation period expired and the Netherlands should have implemented
it, but they hadn’t.
Court of Justice held that it would not in such circumstances give rise to indirect
