[This page is updated by Dr Peter Jepson.]
Bulmer v Bollinger (1974) - Guidelines for referring cases to ECJ - (Must read)
Colson v Land Nordrhen-Westfalen (1984)
Diocese of Hallam Trustee v Connaughton (1996)
Duke v G.E.C Reliance Ltd (1988) - horizontal effect - (Must read)
Factortame (1990) - Sovereignty - (Must read)
Francovich v Italy (1991) - state claim if directive not implemented - (Must read) -
Henn & Darby v DPP (1981) - interpretation - comments of Lord Diplock - (Should read)
Macarthys v Smith 1980 -
Marleasing (1992) - value of EU law - (Must read)
Marshall v Southampton AHA (1986) - direct effect of directives - (Must read)
Paula Faccini Dori v Recreb Srl (Should read)
Pickstone v Freeman (1988) (Should read)
Re Tachographs: The Commission v UK. (1979) - automatic force of regulations - (Must read)
Torfaen Borough Council v B & Q (1990) -
Van Duyn v Home Office (1974) - (Should read)
Van Gend en Loos (1963) (Should read)
Re Tachographs: The Commission v UK. (1979)
Case brought by the Commission. ECJ ruled that UK had to implement a Regulation on the use of mechanical recording equipment in road vehicles used for the carriage of goods ñ it had no option.
Torfaen Borough Council v B & Q (1990)
Magistrates referred a question on whether the restrictions on Sunday trading were a breach of The Treaty of Rome.
Bulmer v Bollinger (1974)
In this case the Court of Appeal set out the approach to be used when deciding whether a discretionary referral should be made to the European Court of Justice.
Article 177 emphasises that a reference should only be made if a ruling by the European Court is necessary to enable the English Court to give judgment in the case.
Necessary means conclusive in the case. If other matters remain to be decided, then the ruling would not be considered necessary. The other guidelines are:
(1) There is no need to refer a question that has already been decided by the ECJ in a previous case.
(2) No need to refer a point which is reasonably clear and free from doubt (acte clair doctrine).
(3) The Court must consider all the circumstances of the case - time before a ruling - overloading of the ECJ - difficulty and importance of the case - expense involved - wishes of the parties.
(4) That the English Court retains the discretion on whether or not to refer to the ECJ.
Van Duyn v Home Office (1974) - A Dutch National wanted to enter the UK. The Home Office refused her entry because she was a Scientologist. In this case it was held that an individual was entitled to reply on Article 48 (freedom of movement)
This was the first case to be referred by an English Court to the ECJ and since then there has been many.
Webb v EMO Air Cargo but one example.
Pickstone v Freeman (1988)
However, often the UK Courts will decide the issue without referral. For example, in Pickstone v Freeman (1988) the Court of Appeal held that Article 119 of the Treaty of Rome on equality of treatment for men and women was clear and could be applied directly.
An example of citizens relying on Articles within the Treaty of Rome directly can be seen from the below two similar cases:
Macarthys v Smith 1980. Wendy Smith relied on Article 119 to claim compensation for being paid less than her male predecessor in exactly the same job. This claim was confirmed by the ECJ.
However, in 1996 a twist on the tail developed in the case of Diocese of Hallam Trustee v Connaughton (1996) the EAT decided that ñ as a preliminary point ñ Miss Connaughton could reply on Article 119 in relation to a claim that after she left employment the difference in pay offered to her successor provided grounds for a claim of equal pay. Ms C was paid £11,138 and when she left the job was advertised at £13,434, and in the event they gave it to a man at over £20,000. Hence the claim.
Similarly, in R v Secretary of State ex parte EOC (1994), the House of Lords decided a Article 119 case without referral to the ECJ.
Direct effect ñ Marshall v Southampton AHA (1986) in which Ms Marshall was required to retire at age of 62 while men stayed to 65. She relied on Equal Treatment Directive 76/207 that had not been fully implemented in the UK. The ECJ held the Directive was sufficiently clear and imposed obligations on the member state.
This applied because she worked for an arm of the state and could thus rely directly upon the directive.
Horizontal Effect ñ Duke v G.E.C Reliance Ltd (1988) ñ Mrs Duke was unable to rely on the Equal Treatment Directive because it is a private company.
Thus an example of horizontal effect of a Directive.
Marleasing (1992) ñ Emphasises the duty of a member state to achieve the objects of a directive.
"The obligations of Member States under a directive is to achieve its objects, and their duty by Article 5 of the Treaty (of Rome) to take all necessary steps to ensure the fulfilment of that obligation, binds all authorities of member States, including national courts within their jurisdiction. It follows that in applying national law whether the provisions concerned pre-date or post-date the directive, the national court asked to interpret national law is bound to do so in every way possible in light of the text and aim of the directive to achieve the results envisaged by it, and thus to apply Article 189 of the Treaty."
Colson v Land Nordrhen-Westfalen (1984) also said earlier: "that national courts are bound to interpret national law in light of the wording and purpose of the directive".
Should a Member State fail to implement a Directive the case of Francovich v Italy (1991) raises the possibility that individuals can sue the government for any losses as a result of a failure to implement a Directive. In Francovich the Italian govt failed to fully protect workers whose firm had gone insolvent. See also Paula Faccini Dori v Recreb Srl
The case of Paula Faccini Dori v Recreb Srl repeated this view and laid down the following three conditions for making good damage caused by a failure to implement a directive.
The purpose of the directive had to be to grant rights to individuals.
It had to be possible to identify the content of those rights on the basis of the provisions of the directive.
There had to be a causal link between the breach of the stateís obligation and the damage suffered.
Van Gend en Loos (1963) and Cost v ENEL (1964) ñ European law takes precedence over national law. The Van Gend case was a Dutch case that involved a conflict between Dutch and EEC law over custom duties.
Factortame (1990) This case involved Spanish Fishermen operating in UK waters. The Thatcher Government introduced legislation to limit such fishing to UK companies.
It was held in this case that a state is liable to compensate for breaches of Community Law ñ this involved Spanish Fishermen and the Merchant Shipping Act 1988.
For a more detailed summary of the important legal arguments of Factortame follow this link.
Note: This case emphasises that EU law is supreme over domestic laws.
Henn & Darby v DPP (1981).
In this case Lord Diplock said...
"The European Court, in contrast to English courts, applies teleological rather than historical methods to the interpretation of Treaties and other Community legislation. It seeks to give effect to what it conceives to be the spirit rather than the letter of the Treaties: sometimes, indeed, to an English judge, it may seem to the exclusion of the letter. It views the Communities as living and expanding organisms and the interpretation of the provisions of the Treaties as changing to match their growth."