EU Law Problem Question - Direct Effect, Indirect Effect and Incidental Horizontal Effect

European Union Law Assignment 2013

Student No. 100366

EU Law Assignment

Margaret Green and Violet Jones are citizens and residents of Twenty Eight, an EU Member State which has been a Member State for over 40 years. Margaret Green is an employee of Car Wash Limited. She has worked there for a period of ten years as an administrative assistant. She was on maternity leave for the last six months of 2012 and returned to work on 1 January 2013. On her return she was told that the administrative assistant position was filled, but that there was a job for her in the car-washing department where she will be required to wash cars and valet car interiors. The salary attaching to the job is €25,000, whereas as an administrative assistant Margaret earned €30,000. As an administrative assistant, Margaret was required to work from nine to five, Monday to Friday. In the car-washing department there is a rota schedule, with staff working five days of every seven, including working two Saturdays and two Sundays, per month. Margaret is very unhappy with these new employment arrangements. Violet Jones is an employee of the National Hospital of Twenty Eight. She has worked there as a nurse for a period of ten years. She was on maternity leave for the last six months of 2012 and returned to work on 1 January 2013. Prior to her maternity leave Violet worked in the paediatric unit. She worked the night shift from 10 p.m. until 8 a.m. on a four nights on, four nights off basis. Prior to maternity leave she earned €40,000 per annum. On return to work she is asked to work in the geriatric ward, working the 2 p.m. to 10 p.m. shift, on a four days on, four days off basis. Her salary remains at €40,000. All other nursing staff who were colleagues in Violet‟s grade and who were in active employment on 31 December 2012 moved to a higher salary of €42,500 and also benefitted from additional pension payments. Violet is very unhappy with these new employment arrangements. Both Margaret and Violet seek your advice as to whether it is possible for them to rely on the provisions of Directive 2006/54/EC of the European Parliament and the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation against their respective employers in the national courts of Twenty Eight. Twenty Eight has not implemented the Directive with a specific domestic implementation measure but claims that the national laws in place prior to the adoption of the Directive are sufficient to implement it. In this respect, one of the national measures on which Twenty Eight relies is the Maternity Leave Protection Act, 1976, which provides at Section 10: “A woman returning from maternity leave after the permissible six month period is entitled to a job with her employer, where she worked for the employer for a continuous period of twelve months prior to maternity leave.” You are required to advise both Margaret and Violet.

European Union Law Assignment 2013

B

Student No. 100366

oth of these cases concern women who were on maternity leave for the last six months of 2012, who had been working in their respective positions for ten years prior to taking maternity leave,

whose working hours and conditions were altered in some way upon their return to work and who, at bottom, want to rely on the provisions of Directive 2006/54/EC against their respective employers in their national courts. Ordering In the instant case, the Member State is claiming that although Directive 2006/54 has not been implemented per say the national laws in place prior to the deadline for transposition are sufficient for implementation and as such, the plaintiffs must rely on those laws, rather than the Directive, before the national courts. The plaintiffs will in turn attempt to rebut this suggestion by arguing that the Directive has not been adequately implemented. This implies that the first sets of arguments will regard the state of the national law and whether or not the Directive is fully effective and achieving an outcome consistent with the objective pursued by it.1 If inadequacy of implementation can be established only then will it be possible to consider the manner in which the plaintiffs may rely on the Directive, that is, either directly, indirectly, incidentally or through general principles of EU law. As the possibility of harmonious interpretation would appear to exclude the disapplication of the national law, the next logical step is thus to consider indirect effect before examining direct effect, the ruling in Mangold v. Helm2 and, finally, the doctrine of incidental horizontal effect. Indeed, the European Court of Justice (ECJ) in Dominguez v. Centre Informatique du Centre Ouest Atlantique3 found that “the question whether a national provision must be disapplied in as much as it conflicts with European Union law arises only if no compatible interpretation of that provision proves possible”4 and, the Court continued, in the event that such an interpretation is not possible, it is necessary to consider whether the directive has a direct effect and, if so, whether it can be relied on by the plaintiffs against their employers.5 Inadequate Implementation The purpose of Directive 2006/54 is ensure equal opportunities and treatment of men and women in matters of employment and occupation and this obligation is extended by Article 6 to individuals whose work is interrupted by maternity. Article 9 provides that provisions contrary to the principle of equal treatment shall include those based on sex either directly or indirectly, for suspending the 1

See: C – 212/04 Adeneler v. ELOG [2004] ECR I 6057 at [111]. Case C – 144/04 Mangold v. Helm [2005] ECR I-9981. 3 Case C – 282/10 Dominguez v. Centre Informatique du Centre Ouest Atlantique [2012] I ECR 0000, nyr, 24 January 2012. 4 Ibid at [23]. 5 Ibid at [32]. 2

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retention or acquisition of rights during periods of maternity leave granted by law or agreement and paid by the employer. Article 33 of the Directive provides, inter alia, that Member States shall take all necessary steps to “guarantee the results imposed by this Directive.” Most importantly, Article 15 guarantees a threefold result: (i)

Employment in the same or equivalent position, and

(ii)

Terms and conditions which are no less favourable, and

(iii)

Benefit from any improvement in working conditions to which she would have been entitled during her absence.

In contrast, s.10 of the Maternity Leave Protection Act 1976 offers the vague guarantee of “a job” and, overall, fails to meet any of the results guaranteed by Article 15. Furthermore, the guarantee itself is conditional upon the employee having worked with her employer for 12 months prior to the maternity leave – a condition that does not affect the plaintiffs in this case. Article 15 offers a much broader, more certain and unconditional level of protection which clearly coincides with the purpose and object of the Directive. When applied to the present case the difference is evident where the actions of both employers are in accordance with the terms of 1976 Act but fall far short of coinciding with the results guaranteed by the Directive. Margret Greene is now employed in a non-equivalent position, with significantly less favourable terms and conditions, while Violet Jones, although employed in an equivalent position, could argue that her conditions are now less a favourable given the changes in her roster and the nature of her work and that she also failed to benefit from wage increases and pension benefits that she would have been entitled during her absence under Article 15 of the Directive. To put this another way, firstly, the narrow scope of the right protected by the national law allows both the National Hospital and Car Wash Ltd to benefit from the Member States‟ failure to adequately implement Directive 2006/54 and, secondly, if such benefit were allowed to continue it would weaken the useful effect of Community law which, through the Directive, clearly legislates to prevent such an outcome.6 It is thus submitted that the national court will find that the s.10 of the 1976 Act does not adequately implement the Directive.

6

In terms of the latter see: Case 41/74 Van Duyn v. Home Office [1974] ECR I-1337 at [12]. In terms of the former see: Case 148/78 Pubblico Ministero v. Tullio Ratti [1979] E.C.R. I-1629 at [22].

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Indirect Effect If the national court finds that the Members State has failed to adequately implement Directive 2006/54 the next step in assessing the plaintiffs claim is to examine whether there is a case for indirect reliance on Directive 2006/54 and whether such reliance is possible in both cases. The indirect effect of directives, as established in the Von Colson and Harz cases,7 amounts to an obligation on the national courts to interpret national measures harmoniously or consistently in terms of EC law and, in particular, those measures which were introduced or are being relied on to implement a directive. Indeed, Chalmers et al point out that at present “it is indirect effect which „is currently the main form of ensuring the effect of directives, whether correctly, incorrectly or not transposed at all‟”.8 Criteria In the Von Colson and Harz cases, the ECJ held that indirect effect could operate both vertically and horizontally where the applicant, Von Colson, sought to rely on Directive 76/207/EEC against a prison run by the regional government, and the other applicant, Harz, sought to rely on it against Deutsche Tradax GmbH, a private company. In this case, the plaintiffs are in similar position. Margret Green‟s employer is a private company, Car Wash Ltd, and Violet Jones‟ employer is the National Hospital of Twenty Eight. By attempting to rely on indirect effect first, the plaintiffs thus initially side step the prohibition on horizontal direct effect and can rely on the inadequately implemented Directive vertically or horizontally as the case may be. 9 Issues concerning the deadline for implementation of the Directive and the fact that the Maternity Leave Protection Act 1976 predates the coming into force of the Directive are, in this case, moot. Firstly, the ECJ in Adeneler v. ELOG10 specified that the interpretative duty applies only after the deadline for implementation has passed11 which, in accordance with Article 33 of Directive 2006/54, was the 15th August 2009 at the latest. Secondly, in Marleasing SA v. La Comercial Internacional de Alimentaction SA12 the Court ruled that the application of indirect effect extends to national legislation pre-dating the directive, and as such, the interpretative obligation is applicable to the 1976 Act.

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Case C – 14/83 Von Colson v. Land Nordrhein-Westfalen [1984] ECR 1891 and Case C – 79/83 Harz v. Deutsche Tradax GmbH [1984] ECR 1921. 8 Chalmers et al., European Law (Cambridge University Press, 2006), at p.387; citing Bethlem “The Doctrine of Consistent Interpretation: Managing Legal Certainty” (2002) 22 O.J.L.S. 397, at 399. 9 Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed,., OUP, 2003) at 201.See also: Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723. 10 Case C – 212/04 Adeneler v. ELOG [2004] ECR I 6057. 11 Ibid at [114]-[115] and [124]. 12 Case C – 106/89 Marleasing SA v. La Comercial Internacional de Alimentaction SA [1990] ECR I-4135.

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Interpretative Limitations Craig and DeBúrca argue that while the interpretative duty is „strong‟ it does not require an interpretation that would result in a contra legem reading13 which, according to Chalmers, means that the principle cannot run contrary to the ordinary meaning of the words.14 This principle was fleshed out in Adeneler where the ECJ held that: It is true that the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem.15 In Marleasing the ECJ outlined the national courts interpretative duty: [I]n applying the national law … 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.16 The task facing the plaintiffs is further complicated by the ECJ‟s decision in Pfeiffer v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV17 which extends the interpretative obligation to ensure that: [W]hen hearing a case between individuals, a national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid by a directive, to consider the whole body of rules of national law.18 Finally, it is worth noting that for the operation of indirect effect, unlike that of direct effect, there is no requirement that the provisions of the directive satisfy the specific justicability criteria of clarity, precision and unconditionality.19 Overall, the task of advising the plaintiffs in relation to indirect effect is an onerous one. The difficulties arise primarily in analysing the inconsistencies between the national law and the Directive. Firstly, the fact that the national court must have regard to the whole body of national law, not just s.10 of the 1976 Act, implies that the myriad sources of law upon which the national court may rely are open to the courts discretion and it is therefore arguable that the choice of sources could vary from 13

Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed., OUP, 2003) at 203. Chalmers et al., European Law (Cambridge University Press, 2006), at p.385. See also: Moriarty, B. “Direct Effect, Indirect Effect and State Liability,” (2007) I.J.E.L 97 at 116. 15 C – 212/04 Adeneler v. ELOG [2004] ECR I 6057 at [110]. 16 Case C – 106/89 Marleasing SA v. La Comercial Internacional de Alimentaction SA [1990] ECR I-4135 at [8] (emphasis added). This was the Irish Supreme Court‟s interpretation of the obligation per Fennelly J (a former Advocate General of the ECJ) in Albatross Feeds v. Minister for the Environment [2006] IESC 52. 17 Case C – 397 – 403/01 Pfeiffer v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835 at [115]. 18 Ibid at [119]. 19 Case T – 237/08 Abadía Retuerta, SA v. OHIM, 11 May 2010, [67]; Case C – 98/09 Sorge v. Post Italiane SpA, 24 June 2010, [49]-[50]. See: Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed,., OUP, 2003) at 200-201. 14

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judge to judge thus leading to legal uncertainty. Secondly, as the court is only required to interpret the national law “as far as possible” it is therefore difficult to surmise how far the national court will consider “as far as possible” to be as again different judges will have distinct ideas regarding what constitutes a judicial re-writing or a reading contra legem. Finally, the question is rendered significantly more uncertain by virtue of the fact that inconsistencies in an uncertain range of national provisions are being compared to all the provisions of the Directive including those that are not sufficiently precise or certain. All of this clearly skews any possible predictive certainty when it comes to assessing whether the national court will be able to offer a harmonious interpretation of the national law. Given these difficulties, it is submitted the only way of ascertaining whether a harmonious interpretation is possible is through the process of litigation itself. Damages If harmonious interpretation is deemed impossible, it remains open for the plaintiffs to seek damages for breach of EU law under the ECJ‟s ruling in Francovich.20 In Adeneler, for example, the Court held that: [I]f the result prescribed by a directive cannot be achieved by way of interpretation, it should also be borne in mind that, in accordance with the judgment in [Francovich] Community law requires the Member States to make good damage caused to individuals through failure to transpose that directive.21 Direct Effect The concept of direct effect was developed by the ECJ in Van Gend en Loos v. Nederlandse Administratie der Belastingen22 as a method by which it could guarantee the efficacy and uniform application of Community law.23 This gave rise to what Weatherill seen as enforcement by “dual vigilance,” that is, the enforcement of EC law “at two levels by the Commission or Members States before the Court; and by individuals relying on the notion of direct effect before the national courts”.24 Van Gend en Loos, however, was only concerned with the direct effect of Treaty Articles and it was not until Van Duyn v. Home Office25 that the Court explicitly ruled that directives were also capable of direct effect and thus, in certain circumstances, were capable of being relied on by individuals at

20

Case C-6/90 Francovich and Bonifaci v. Italy [1991] I ECR 5357. See, for example, Case C – 334/92 Wagner Miret v. Fondo de Garantia Salaria [1993] ECR I 6911. See also: Moriarty, B. “Direct Effect, Indirect Effect and State Liability,” (2007) I.J.E.L 97 at 116. 21 C – 212/04 Adeneler v. ELOG [2004] ECR I 6057 at [112]. 22 Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] E.C.R I-1 23 Ibid at 12. 24 Weatherill, S. “National Remedies and Equal Access to Public Procurement”, (1990) 10 Y.E.L. 243, at 244. 25 Case 41/74 Van Duyn v. Home Office [1974] ECR I-1337.

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national level.26 Craig and DeBúrca succinctly outlined the ECJ‟s rationale and the ultimate result of direct effect as follows: If the Member State had implemented the directive the individual would have been able to rely on the implementing law. The Member State had committed a wrong by failing to implement the directive, and could not rely upon that wrongdoing so as to deny the binding effect of the directive itself after the date for implementation. Where necessary, a conflicting national law should be disapplied.27 Criteria and Limitations In Van Duyn and subsequent cases the ECJ developed certain criteria which must be met before directives can be said to be directly effective. The Court noted that in every case it is necessary to examine “whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member States and individuals”.28 In Becker v. Finanzamt Munster-Innenstadt29 the ECJ explained that: [W]herever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive.30 This statement prescribes the three main criteria for the direct effect of directives viz. the unconditionality and precision of its provisions and the passing of the time limit for implementation. The ECJ‟s ruling in Marshall v. Southampton and South-West Hampshire Area Health Authority31 offers a final obstacle to potential applicants where the Court found that the direct effect of directives may only operate vertically against the State.32

26

Ibid at [12]. Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed,., OUP, 2003) at 193 (emphasis added). See also: Case C – 462/99 Connect Austria Gesellschaft für Telekommunikation GmbH v. Telekom Control-Kommission and Mobilkom Austria AG [2003] ECR I-5197 at [40]. 28 Case 41/74 Van Duyn v. Home Office [1974] ECR I-1337 at [12]. 29 Case 8/81 Becker v. Finanzamt Munster-Innenstadt [1982] E.C.R. 53. See also: Case 2/74 Reyners v. Belgium [1974] ECR I-631; Case 148/78 Pubblico Ministero v. Tullio Ratti [1979] E.C.R. I-1629 at [23] and Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 at [46]. 30 Ibid at [25] (emphasis added). 31 Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723. 32 Ibid at [48]-[50]. The exceptions to this rule will be discussed in due course. 27

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Application In respect of the first two criteria, what needs to be demonstrated at national level is that no discretion exists in relation to the obligations imposed by the directive in guaranteeing its object,33 and, that the content of the obligations imposed by the directive can be identified with a precision sufficient to accommodate their enforcement.34 Essentially, what is necessary, as Craig and DeBúrca explain, is that a clear and precise obligation can be separated out from other parts of the directive. If it can, an individual can rely on a directive even where the State has fully exercised its discretion on implementation.35 In relation to Directive 2006/54, it could be argued that the three mandatory entitlements expressly provided for by Article 15 clearly place an unconditional and distinct obligation on an employer in relation to the protection of the employment rights of women on maternity leave. Indeed, the terms and content of Article 15 itself are drafted in such a way as to provide a clear, precise and understandable statement of what is required of an employer. Moreover, alluding to Article 15, the 25th Recital of the Preamble to the Directive states that it was necessary to adopt “express provisions for the protection of the employment rights of women on maternity leave” for “reasons of clarity”. It is thus submitted that Article 15 is precise and unconditional and, given the passing of the deadline for implementation, is thus capable of direct effect.36 The verticality criterion, however, may yet prove problematic. In order to determine the scope of the concept of “the State” the ECJ in Foster v. British Gas plc37 established the following test: [A] body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.38

33

For similar reasoning by a court at national level, see: Kincardine and Deeside District Council v. Forestry Commissioners [1994] 2 C.M.L.R. 869 at [34]. See also: Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed., OUP, 2003) at 193. 34 For similar reasoning by a court at national level, see: McBride v. Galway Corporation [1998] 1 IR 485 at 510. 35 Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed., OUP, 2003) at 193. See also: Case C – 138/07 Belgische Staat v. Cobelfret NV [2009] ECR I-731 at [61]. 36 For similar reasoning by the ECJ, see: : Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 at [52]-[55]. 37 Case C-188/89 Foster v. British Gas plc [1990] ECR I-3313. 38 Ibid at [20]

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This definition makes it clear that the ECJ‟s have chosen to define “the State” in quite broad terms which include organs or emanations thereof.39 Indeed, Advocate General Jacobs has commented that all that seems to be required is some element of State participation or control.40 In relation to Violet Jones‟ case it is submitted that the National Hospital will be considered as an „emanation of the State,‟ particularly, if the hospital is constituted by statute (or has some statutory or legal basis) or even if it merely receives State funding or supervision. Indeed, the ECJ in Marshall, following a ruling of the Court of Appeal in the UK, upheld the finding that a Health Authority constituted by statute could be considered as a public authority.41 In sum, the combined effect of meeting all these criteria can be seen in the ECJ‟s ruling in Pubblico Ministero v. Tullio Ratti42 where the Court held that when a Member State has failed to adopt adequate implementing measures in the prescribed period: [I]t follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the internal legal order of a defaulting member state, must uphold that request if the obligation in question is unconditional and sufficiently precise.43 On this basis, it is submitted that there is a high probability that the national courts will disapply s.10 of the 1976 Act and allow Violet Jones‟ request to rely on the Directive at national level against her employer. On the other hand, as Car Wash Ltd is a wholly private company lacking any element of State participation or control and it is thus highly improbable that it would be considered by the national courts as an „emanation of the State‟ and, if this is the case, Margret Greene will not be able to rely on the direct effect of Directive 2006/54. General Principles of Law and Incidental Horizontal Effects There are however two further qualifications, in addition to the doctrine of indirect effect, that allow directives to have horizontal effect and could permit Margret Greene to rely on the Directive.

39

See also: Case C – 222/84 Johnston v. Chief Justice of the Royal Ulster Constabulary [1986] ECR 1651at p.1691. Indeed, in practical terms local authorities, health authorities, nationalised industries, universities and even regions have been considered by the Court to come under the scope of this definition; see: Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed., OUP, 2003) at 198. 40 Case C- 316/93 Vaneetveld v. Le Foyer SA [1994] ECR I-763, Jacobs AG. 41 Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 at [24], [27], [50]. 42 Case 148/78 Pubblico Ministero v. Tullio Ratti [1979] E.C.R. I-1629 at [22]-[23] 43 Moriarty, B. “Direct Effect, Indirect Effect and State Liability,” (2007) I.J.E.L 97 at 103.

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General Principles of Law The case of Mangold v. Helm44 concerned an action between two private individuals concerning a fixed term contract under which Mangold was employed by Helm, a solicitor. Mangold argued that his employment contract was in breach of Directive 2000/78 (establishing a general framework for equal treatment in employment and occupation) and that the relevant German law was not consistent with the Directive. The ECJ reasoned that the principle of non-discrimination on grounds of age must be regarded as a general principle of Community law and, in those circumstances, it is the responsibility of the national court to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective by setting aside any provision of national law which may conflict with that law.45 Craig and DeBúrca argue that the effect of this ruling is to: [R]ender some of the obligations from the Directive immediately applicable in an action between private parties through the general principle of non-discrimination on the grounds of age, the corollary being that the national court should set aside any provision of national law which conflicted with this general principle of EU law.46 In this case, it could be argued that the ruling in Mangold47 could be applied in the case of Margret Greene. Firstly, the 2nd, 3rd and 5th Recitals of Directive 2006/54 illustrate that non-discrimination on the grounds of sex could be considered a general principle of Community law. Secondly, in Marshall the ECJ (and the Commission) appeared to agree with submissions on behalf of the applicant that “the elimination of discrimination on grounds of sex forms part of the corpus of fundamental human rights and therefore of the general principles of Community law”. 48 Furthermore, as s.10 of the Maternity Leave Protection Act 1976 puts women at a particular disadvantage compared with men in relation to their potential loss of position, pay and benefit upon return from maternity leave absent any legitimate aim it could be cogently argued that the national law conflicts with this general principle by indirectly discriminating against the plaintiff, Margret Greene. If these arguments are successful and the Member State fails to distinguish Mangold it is possible that national law could be set aside and the plaintiff could then rely on the Directive.

44

Case C – 144/04 Mangold v. Helm [2005] ECR I-9981. Case C – 144/04 Mangold v. Helm [2005] ECR I-9981at [74]-[77]. 46 Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed., OUP, 2003) at 213. 47 Case C – 144/04 Mangold v. Helm [2005] ECR I-9981at [7] and [74]-[77]. 48 Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 at [24], [27], [36]. 45

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Incidental Horizontal Effect The doctrine of incidental horizontal effect acknowledges the ability of a directive to have an incidental effect on the rights and obligations of private parties. The effect is „incidental‟ because the directive itself does not impose the rights and obligations on the parties but, rather, the failure of a Member State to comply with the directive has the result of effecting legal rights stemming from elsewhere. Indeed, this was the case in Unilever Italia SpA v. Central Food SpA,49 where Italy‟s failure to comply with a directive effected legal rights arising out a contract of sale and supply resulting in Central Foods suffering a legal detriment, a requirement to pay for olive oil, and Unilever gaining a legal advantage, remuneration for the goods .50 Although Margret Greene‟s case involves a private contract of employment the fact that Directive 2006/54 does impose rights and obligations, in particular, in respect of non-discrimination on the grounds of sex, would be sufficient to distinguish the case law on incidental effect and disrupt any arguments stemming therefrom. It is clear from the foregoing that the Member States‟ failure to adequately implement the Directive has a direct impact on the rights and obligations at issue in this case. It is therefore submitted that any attempt to rely on the Directive in this manner would fail at national level.

WORDCOUNT: 3.493

49

: Case C – 443/98 Unilever Italia SpA v. Central Food SpA [2000] ECR I-7535. See also: Case C – 194/94 CIA Security International SA v. Signalson SA and Securitel SPRL [1996] ECR I-2201 and Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed., OUP, 2003) at 208. 50

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Bibliography

EU Case law Case T – 237/08 Abadía Retuerta, SA v. OHIM, 11 May 2010 C – 212/04 Adeneler v. ELOG [2004] ECR I 6057 Case 8/81 Becker v. Finanzamt Munster-Innenstadt [1982] ECR. 53 Case C – 138/07 Belgische Staat v. Cobelfret NV [2009] ECR I-731 Case C – 194/94 CIA Security International SA v. Signalson SA and Securitel SPRL [1996] ECR I2201 Case C – 462/99 Connect Austria Gesellschaft für Telekommunikation GmbH v. Telekom ControlKommission and Mobilkom Austria AG [2003] ECR I-5197 Case C – 282/10 Dominguez v. Centre Informatique du Centre Ouest Atlantique [2012] I ECR 0000, nyr, 24 January 2012 Case C-188/89 Foster v. British Gas plc [1990] ECR I-3313 Case C-6/90 Francovich and Bonifaci v. Italy [1991] I ECR 5357 Case C – 79/83 Harz v. Deutsche Tradax GmbH [1984] ECR 1921 Case C – 222/84 Johnston v. Chief Justice of the Royal Ulster Constabulary [1986] ECR 1651 Case C – 144/04 Mangold v. Helm [2005] ECR I-9981 Case C – 106/89 Marleasing SA v. La Comercial Internacional de Alimentaction SA [1990] ECR I4135 Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 Case C – 397 – 403/01 Pfeiffer v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I8835 Case 148/78 Pubblico Ministero v. Tullio Ratti [1979] ECR I-1629 Case 2/74 Reyners v. Belgium [1974] ECR I-631 Case C – 98/09 Sorge v. Post Italiane SpA, 24 June 2010 Case C – 443/98 Unilever Italia SpA v. Central Food SpA [2000] ECR I-7535 Case 41/74 Van Duyn v. Home Office [1974] ECR I-1337 Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR I-1 Case C- 316/93 Vaneetveld v. Le Foyer SA [1994] ECR I-763, Jacobs AG ~ 11 ~

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Case C – 14/83 Von Colson v. Land Nordrhein-Westfalen [1984] ECR 1891 Case C – 334/92 Wagner Miret v. Fondo de Garantia Salaria [1993] ECR I 6911

National Law Albatross Feeds v. Minister for the Environment [2006] IESC 52 Kincardine and Deeside District Council v. Forestry Commissioners [1994] 2 C.M.L.R. 869 McBride v. Galway Corporation [1998] 1 IR 485

Articles Bethlem “The Doctrine of Consistent Interpretation: Managing Legal Certainty” (2002) 22 O.J.L.S. 397 Moriarty, B. “Direct Effect, Indirect Effect and State Liability,” (2007) I.J.E.L 97 Weatherill, S. “National Remedies and Equal Access to Public Procurement”, (1990) 10 Y.E.L. 243 The Hon. Ms Justice Finlay Geoghegan, Judge of the High Court of Ireland. “Protective Measures for Pregnant Workers in the Workplace,” (2011) 2 I.E.L.J 36

Books Chalmers et al., European Law (Cambridge University Press, 2006) Craig and DeBúrca, EU Law: Text, Cases and Materials (3rd ed,., OUP, 2003)

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