Posts Tagged Farrell
Motor insurance cases in Ireland keep on giving the CJEU opportunity to refine and re-emphasise the lack of horizontal direct effect of Directives. This time it is C-122/17 Smith v Meade.
I apologise to the readers if this sounds gobbledygook: [EU law tutorial] in short: one of the issues of the penetration of EU law into national legal orders, is whether individuals can, against other individuals (hence ‘horizontal’ relations), call upon rights given to them by EU ‘secondary’ law (as opposed to primary law, which mainly consists of the Treaties), particularly in the case of Directives, which unlike Regulations require Member States’ implementing measures.
The CJEU’s long-standing case-law answers this question in the negative (Marshall): mostly because it argues that any other conclusion would cancel out the Treaty-sanctioned difference between Regulations and Directives. The Court does do it utmost to assist individuals seeking to rely on EU law against national law: Directives can be called upon against the Member State and ’emanations from the state’ and the latter notion is stretched as much as possible (that was also the issue in Farrell); national law needs to as much as possible be interpreted to reflect the intention of the EU Directive, even if this requires setting aside long-standing interpretation of national law (Marleasing) – but this does not extend to interpretation contra legem (ex multi: Dominguez); and if all else fails, the State owes its citisens compensation (Frankovich). [EU law tutorial ends].
In the case at hand, the CJEU recalls all of the above succinctly, and confirms the absence of an overall possibility of relying on a directive in the sphere of relationships between private persons. EU law does not oblige a national court (question to EU institutional law experts: may a Member State ‘gold plate’ and do so anyway, even if this route might be unavailable to individuals in other Member States) to set aside in a horizontal relationship, national provisions that are incompatible with the Directive, and the contractual provisions between private individuals as a result of that national law.
The Irish Court’s referral to Luxembourg may seem odd given the established principles. Yet the Court of Justice does stretch its own case-law on these issues, ever so slowly while sticking to the Marshall principle. As a result national courts feel encouraged to ask the Court just where the boundaries lie.
The answer of the Court in full:
EU law, in particular Article 288 TFEU, must be interpreted as meaning that a national court, hearing a dispute between private persons, which finds that it is unable to interpret the provisions of its national law that are contrary to a provision of a directive that satisfies all the conditions required for it to produce direct effect in a manner that is compatible with that provision, is not obliged, solely on the basis of EU law, to disapply those provisions of national law and a clause to be found, as a consequence of those provisions of national law, in an insurance contract.
In a situation such as that at issue in the main proceedings, a party adversely affected by the incompatibility of national law with EU law or a person subrogated to the rights of that party could however rely on the case-law arising from the judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428), in order to obtain from the Member State, if justified, compensation for any loss sustained.
I reported on Sharpston AG’s Opinion in C-413/15 Farrell just before the summer break. The case considers the C-188/89 Foster criteria on what constitutes an ’emanation from the state’, for Directives to potentially have direct effect in individuals’ relations with that body. The CJEU held last week, in Grand Chamber, and decided the criteria apply disjunctively, not conjunctively. It is sufficient that the private body concerned have special powers beyond those which result from the normal rules applicable to relations between individuals; it need not, additionally, be a body under control of the State.
The Irish legislature conferred on the MIBI (Motor Insurance Bureau of Ireland) special powers beyond those which result from the normal rules applicable to relations between individuals, in that, on the basis of that statutory provision, that private organisation has the power to require all those insurers to become members of it and to contribute funds for the performance of the task conferred on it by the Irish State.
A further and important piece in the jigsaw that is direct effect. Next up no doubt: what exactly are the boundaries of ‘special powers’. Conflicts lawyers may recognise some of the discussions surrounding ‘civil and commercial’.
Perhaps it’s the warm weather or the balmy number of exams I am having to compile this term, but my imagination was running dry. One more exam to compose and it is for my American University summer law school students. A course on EU integration. Scratching my head on trying to find yet another variation on the direct effect theme, Advocate General Sharpston came to the rescue. So far I have only seen the press release (the Opinion itself is not on Curia yet) in C-413/15 Farrell which considers the C-188/89 Foster criteria on what constitutes an ’emanation from the state’. From the press release:
‘Ever since the Court developed the doctrine of the direct effect of directives and rendered it applicable to ‘vertical’ disputes between the individual and the State, but declined to extend that doctrine ‘horizontally’ to cover disputes between private parties, it has been essential to know what are the boundaries of ‘the State’ for the purposes of applying that doctrine. In its judgment in Foster, the Court set out a series of tests for determining the types of bodies that might be treated as ‘the State’ or, although it did not use that expression in its judgment, ‘an emanation of the State’ in that context. It did so by reference to existing case-law, which included a reference to the body in question having ‘special powers’.’
The focus of the Opinion is on those ‘special powers’.
In C-365/05, the Court had already held that Ireland had not properly implemented Directive 90/232. the question now before the court si whether the Motor Insurers’ Bureau of Ireland (MIBI) is an emanation of the State, engaging therefore vertical direct effect. The Irish High Court held it does. The Irish Supreme Court now asks whether the Foster criteria need to be applied cumulatively. Sharpston AG clearly suggests they do not, indeed that they are not limitative either: see the text for more detail of the criteria examined by Ms Sharpston.
Now, once the full text is out, one can of course chew over this a bit more. But for an introductory course, the press release suffices.