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nments to follow the law both member states and the commission have a general legal right or standing locus standi to bring claims against eu institutions and other member states for breach of the treaties from the eu s foundation the court of justice also held that the treaties allowed citizens or corporations to bring claims against eu and member state institutions for violation of the treaties and regulations if they were properly interpreted as creating rights and obligations however under directives citizens or corporations were said in 1986 to not be allowed to bring claims against other non state parties 93 this meant courts of member states were not bound to apply a union law where a state law conflicted even though the member state government could be sued if it would impose an obligation on another citizen or corporation these rules on direct effect limit the extent to which member state courts are bound to administer eu law all actions by eu institutions can be subject to judicial review and judged by standards of proportionality particularly where general principles of law or fundamental rights are engaged the remedy for a claimant where there has been a breach of the law is often monetary damages but courts can also require specific performance or will grant an injunction in order to ensure the law is effective as possible 94 direct effect edit this article may benefit from being shortened by the use of summary style summary style may involve the splitting of sections of text to one or more sub topic articles which are then summarized in the main article v t e direct effect cases van gend en loos v nederlandse administratie der belastingen 1963 case 26 62 van duyn v home office 1974 case 41 74 defrenne v sabena no 2 1976 case 43 75 von colson v land nordrhein westfalen 1984 case 14 83 tfeu art 288 commission v italy 1972 case 39 72 pubblico ministero v ratti 1979 case 148 78 marshall v southampton health authority 1986 case 152 84 faccini dori v recreb srl 1994 c 91 92 cia security v signalson and securitel 1996 c 194 94 pfeiffer v deutsches rotes kreuz ev 2005 c 397 01 kücükdeveci v swedex gmbh co kg 2010 c 555 07 foster v british gas plc 1990 c 188 89 marleasing sa v la comercial sa 1990 c 106 89 unilever italia spa v central food spa 2000 c 443 98 francovich v italy 1991 c 6 90 see eu law main articles direct effect and standing law although it is generally accepted that eu law has primacy not all eu laws give citizens standing to bring claims that is not all eu laws have direct effect 95 in van gend en loos v nederlandse administratie der belastingen 96 it was held that the provisions of the treaties and eu regulations are directly effective if they are 1 clear and unambiguous 2 unconditional and 3 did not require eu or national authorities to take further action to implement them van gend en loos a postal company claimed that what is now tfeu article 30 prevented the dutch customs authorities charging tariffs 97 when it imported urea formaldehyde plastics from germany to the netherlands after a dutch court made a reference the court of justice held that even though the treaties did not expressly confer a right on citizens or companies to bring claims they could do so historically international treaties had only allowed states to have legal claims for their enforcement but the court of justice proclaimed the community constitutes a new legal order of international law because article 30 clearly unconditionally and immediately stated that no quantitative restrictions could be placed on trade without a good justification van gend en loos could recover the money it paid for the tariff eu regulations are the same as treaty provisions in this sense because as tfeu article 288 states they are directly applicable in all member states member states come under a duty not to replicate regulations in their own law in order to prevent confusion for instance in commission v italy the court of justice held that italy had breached a duty under the treaties both by failing to operate a scheme to pay farmers a premium to slaughter cows to reduce dairy overproduction and by reproducing the rules in a decree with various additions regulations held the court of justice come into force solely by virtue of their publication and implementation could have the effect of jeopardising their simultaneous and uniform application in the whole of the union 98 on the other hand some regulations may themselves expressly require implementing measures in which case those specific rules should be followed 99 the van gend en loos case first allowed eu citizens to claim rights based on eu law despite the influential opinions of three advocate generals 100 and major exceptions directives are still thought not to create direct rights among private parties while the treaties and regulations will have direct effect if clear unconditional and immediate directives do not generally give citizens as opposed to the member state standing to sue other citizens in theory this is because tfeu article 288 says directives are addressed to the member states and usually leave to the national authorities the choice of form and methods to implement in part this reflects that directives often create minimum standards 101 leaving member states to apply higher standards for example the working time directive requires that every worker has at least 4 weeks paid holidays each year but most member states require more than 28 days in national law 102 however on the current position adopted by the court of justice citizens have standing to make claims based on national laws that implement directives but not from directives themselves 103 directives do not have so called horizontal direct effect i e between non state parties 104 this view was instantly controversial and in the early 1990s three advocate generals persuasively argued that directives should create rights and duties for all citizens 105 the court of justice refused but there are five large exceptions first if a directive s deadline for implementation is not met the member state cannot enforce conflicting laws and a citizen may rely on the directive in such an action so called vertical direct effect so in pubblico ministero v ratti because the italian government had failed to implement a directive 73 173 eec on packaging and labelling solvents by the deadline it was estopped from enforcing a conflicting national law from 1963 against mr ratti s solvent and varnish business 106 a member state could not rely as against individuals on its own failure to perform the obligations which the directive entails 107 second a citizen or company can also invoke a directive as a defence in a dispute with another citizen or company not just a public authority which is attempting to enforce a national law that conflicts with a directive so in cia security v signalson and securitel the court of justice held that a business called cia security could defend itself from allegations by competitors that it had not complied with a belgian decree from 1991 about alarm systems on the basis that it had not been notified to the commission as a directive required 108 third if a directive gives expression to a general principle of eu law it can be invoked between private non state parties before its deadline for implementation this follows from kücükdeveci v swedex gmbh co kg where the german civil code 622 stated that the years people worked under the age of 25 would not count towards the increasing statutory notice before dismissal ms kücükdeveci worked for 10 years from age 18 to 28 for swedex gmbh co kg before her dismissal she claimed that the law not counting her years under age 25 was unlawful age discrimination under the employment equality framework directive the court of justice held that the directive could be relied on by her because equality was also a general principle of eu law 109 fourth if the defendant is an emanation of the state even if not central government it can still be bound by directives in foster v british gas plc the court of justice held that mrs foster was entitled to bring a sex discrimination claim against her employer british gas plc which made women retire at age 60 and men at 65 if 1 pursuant to a state measure 2 it provided a public service and 3 had special powers 110 this could also be true if the enterprise is privatised as it was held with a water company that was responsible for basic water provision 111 fifth national courts have a duty to interpret domestic law as far as possible in the light of the wording and purpose of the directive 112 textbooks though not the court itself often called this indirect effect in marleasing sa v la comercial sa the court of justice held that a spanish court had to interpret its general civil code provisions on contracts lacking cause or defrauding creditors to conform with the first company law directive article 11 113 that required incorporations would only be nullified for a fixed list of reasons 114 the court of justice quickly acknowledged that the duty of interpretation cannot contradict plain words in a national statute but if a member state has failed to implement a directive a citizen may not be able to bring claims against other non state parties it must instead sue the member state itself for failure to implement the law 115 in sum the court of justice s position on direct effect means that governments and taxpayers must bear the cost of private parties mostly corporations for refusing to follow the law references and remedies edit v t e preliminary references tfeu art 267 vaassen v beambtenfonds mijnbedrijf 1966 case 61 65 miles v european schools 2011 c 196 09 cilfit v ministry of health 1982 case 283 81 kenny roland lyckeskog 2002 c 99 00 r hs2 action alliance ltd v ss for transport 2014 uksc 3 outright monetary transactions case 2014 bverfge 134 366 see eu law main articles preliminary ruling and certiorari litigation often begins and is resolved by member state courts they interpret and apply eu law and award remedies of compensation and restitution remedying loss or stripping gains injunctions and specific performance making somebody stop or do something if however the position in eu law appears unclear member state courts can refer questions to the court of justice for a preliminary ruling on eu law s proper interpretation tfeu article 267 says court may refer if it considers this is necessary to enable it to give judgment and shall bring the matter before the court if there is no possibility for further appeal and remedy any court or tribunal of a member state can refer this is widely interpreted it obviously until brexit included bodies like the uk supreme court a high court or an employment tribunal in vaassen v beambtenfonds mijnbedrijf 116 the court of justice also held that a mining worker pension arbitration tribunal could make a reference by contrast and oddly in miles v european schools 117 the court of justice held that a complaints board of european schools set up under the international agreement the european schools convention could not refer because though it was a court it was not of a member state even though all member states had signed that convention courts around the eu like the federal administrative court of germany may refer questions of interpretation to the court of justice at any time some member states are more active than others in doing so 118 on the other side courts and tribunals are theoretically under a duty to refer questions in the uk for example lord denning mr considered it appropriate to refer if the outcome of a case depended on a correct answer 119 and the civil procedure rules entitled the high court to refer at any stage of proceedings 120 the view of the court of justice in the leading case cilfit v ministry of health is that a national court has no duty to refer if the law is an acte clair a clear rule or so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved 121 in kenny roland lyckeskog the court of justice held that the duty to refer existed for the swedish court of appeal the hovrätt since sweden s supreme court högsta domstol had to give permission for appeals to continue 122 the practical difficulty is that judges differ on their views of whether or not the law is clear in a significant case three rivers dc v governor of the bank of england 123 the uk house of lords felt confident that it was clear under the first banking directive that depositors did not have direct rights to sue the bank of england for alleged failure to carry out adequate prudential regulation their lordships highlighted that while some uncertainty might exist the costs of delay in making a reference outweighed the benefits from total certainty by contrast in parkingeye ltd v beavis a majority of the supreme court apparently felt able to declare that the law under unfair terms in consumer contracts directive was acte clair and decline to make a reference even though a senior law lord delivered a powerfully reasoned dissent 124 however in addition to a reluctance to make references a general scepticism has grown among senior member state judiciaries of the mode of reasoning used by the court of justice the uk supreme court in r hs2 action alliance ltd v secretary of state for transport devoted large parts of its judgment to criticism in its view an unpredictable teleological mode of reasoning which could decrease confidence in maintaining a dialogue within a plural and transnational judicial system 125 it added that it might not interpret the european communities act 1972 to abridge basic principles and understanding of constitutional functioning in effect implying that it might decline to follow unreasonable court of justice judgments on important issues similarly the german constitutional court in the outright monetary transactions case referred a question for preliminary ruling on whether the european central bank s plan to buy greek and other government bonds on secondary markets despite the treaty prohibition on buying them directly was unlawful 126 in a highly unusual move the two most senior judges dissented that the ecb s plan could be lawful while the majority closely guided the court of justice on the appropriate mode of reasoning if references are made the court of justice will give a preliminary ruling in order for the member state court to conclude the case and award a remedy the right to an effective remedy is a general principle of eu law enshrined in the charter of fundamental rights article 47 most of the time regulations and directives will set out the relevant remedies to be awarded or they will be construed from the legislation according to the practices of the member state 127 it could also be that the government is responsible for failure to properly implement a directive or regulation and must therefore pay damages in francovic...
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