LAW OF THE EUROPEAN UNION I: 2018-19
EU LAW IN THE NATIONAL LEGAL SYSTEMS
These lectures will be delivered by:

Queries about the content of the lectures should be directed to whilst those relating to the overall organisation of the module can be addressed to the module coordinator
Introduction
Decentralised enforcement of Union law, built around four pillars:
1. The direct effect of rules of Union law within the national legal order;
2. The principle of supremacy of EU law over conflicting national rules;
3. Effective judicial protection of Treaty-based rights in domestic courts;
4. Guidance on the interpretation of Union law by the CJEU through the preliminary reference procedure.

Introduction to direct effect and supremacy
DIRECT EFFECT + SUPREMACY = IMPACT OF EU LAW IN NATIONAL LEGAL SYSTEMS
Case 26/62 van Gend en Loos [1963] ECR 1:
“…the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. “
= DIRECT EFFECT: a directly effective provision is one that bestows a right on a natural or legal person and can be relied upon in national courts.
Case 6/64 Costa v Enel [1964] ECR 585:
“…the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.
…the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.
The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.”
= SUPREMACY: where a provision on national and EU law are in conflict, the latter will prevail.
I) The principle of direct effect
A directly effective provision is one that bestows a right on a natural or legal person and can be relied upon in national courts.
A) The threshold criteria for direct effect
In Case 2/74 Reyners v Belgian State [1974] ECR 631 Advocate General Mayras summarised the criteria as follows:
• The provision in question must be sufficiently clear and precise for judicial application;
• It must establish an unconditional obligation;
• The obligation must be complete and legally perfect, and its implementation must not depend on measures being subsequently taken by Union institutions or Member States with discretionary power in the matter.
So, how has the Court interpreted these criteria?
• Direct effect recognised, e.g.
– Case 26/62 van Gend en Loos [1963] ECR 1: ex-Article 12 EC (now Article 30 TFEU)
– Case 13/68 Salgoil [1968] ECR 453: ex-Articles 30 (now Article 34 TFEU) and 31 EC (now repealed)
– Case 2/74 Reyners [1974] ECR 631: ex-Article 43 EC (now Article 49 TFEU)
• Direct effect denied, e.g.
– Case 148/78 Ratti [1979] ECR 1629: pre-deadline for transposition of directive
– Case C-378/97 Wijsenbeek [1999] ECR I-6207: Article 14 EC (Article 26 TFEU)
 If there is no direct effect but the deadline (if any) has expired:
– Case C-54/96 Dorsch Consult [1997] ECR I-4961: duty of consistent interpretation (see further below)
– Cases C-6 and 9/90 Francovich [1991] ECR I-5357: damages against defaulting Member State (see further below)
 If there is no direct effect and the deadline (where applicable) has not yet expired:
– Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411: negative duty not to take measures liable serious to compromise objectives of Union law
B) Who can benefit from direct effect?
 Direct effect closely associated with the creation and enforcement of individual rights
 But individuals can also invoke directly effective Union law for enforcement of collective interests, e.g. Case C-72/95 Kraaijeveld [1996] ECR I-5403
C) Who can you rely on direct effect against?
1) Treaty provisions
 Both vertical and horizontal direct effect possible, e.g.
 Case 127/73 BRT v SABAM [1974] ECR 51: Articles 81(1) and (2) EC (now Article 101 TFEU), and Article 82 EC (now Article 102 TFEU)
 Case 43/75 Defrenne v Sabena [1976] ECR 455: Article 141 EC (now Article 157 TFEU)
 Case C-281/98 Angonese [2000] ECR I-4131: Article 39 EC (now Article 45 TFEU)
 Though horizontal direct effect not necessarily recognised in all cases, e.g. Case C-159/00 Sapod Audic v EcoEmballages [2002] ECR I-5031: Article 28 EC (now Article 34 TFEU); though note Case C-171/11 Fra.bo EU:C:2012:453 on application to certain private bodies)
 Similar approach applies to other provisions of primary Union law, i.e. Charter of Fundamental Rights and general principles of Union law:

– however, recall that these are “second order” provisions: only apply when triggered by another provision of Union law, i.e. to bring situation “within scope of Union law”, e.g. Case C-617/10 Fransson EU:C:2013:105

– moreover, even when they do apply, only capable of producing legally enforceable rights / obligations where fulfil criteria for having direct effect of their own, e.g. Case C-176/12 AMS EU:C:2014:2

2) Regulations
 Article 288 TFEU: A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
 Regulations need not have direct effect, where they leave Member States certain discretion to implement their provisions, e.g. Case C-403/98 Monte Arcosu [2001] ECR I-103
 Where regulations do have direct effect, in principle, it may be both vertical and horizontal (as with Treaty provisions), e.g. Case C-253/00 Muñoz [2002] ECR I-7289
3) Directives
 Article 288 TFEU: A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
 “Vertical” direct effect possible, i.e. directive can be enforced against defaulting Member State: Case 41/74 Van Duyn [1974] ECR 1337; Case 148/78 Ratti [1979] ECR 1629
 “Horizontal” direct effect prohibited, i.e. directive cannot be enforced against private individuals
• covers situation where one private party seeks to rely on unimplemented directive directly against another, e.g. Case 152/84 Marshall [1986] ECR 723; Case C-91/92 Faccini Dori [1994] ECR I-3325
• but also includes situation where Member State itself seeks to rely on unimplemented directive directly against individual, e.g. Case 14/86 Pretore di Salò [1987] ECR 2545
 In light of criticisms of the court’s reasoning, several means of alleviating the hardships caused by the lack of HDE for directives have been developed – though these often raise further conceptual and practical difficulties…
i) “Emanation of the state” doctrine
 Case C-188/89 Foster v British Gas [1990] ECR I-3313: 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 among the bodies against which directives may have VDE
 Public authorities, e.g. Case 152/84 Marshall [1986] ECR 723; Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651; Case 103/88 Fratelli Costanzo [1989] ECR 1839
 Public utilities and other public services, e.g. Case C-188/90 Foster v British Gas [1990] ECR I-3313; Case C-157/02 Rieser Internationale Transporte [2004] ECR I-1477
 As applied by English courts, e.g. Griffin v South-West Water Services Ltd [1995] IRLR 15; NUT v Governing Body of St Mary’s CoE Junior School [1997] 3 CMLR 630
ii) Duty of consistent interpretation
 Case 14/83 Von Colson [1984] ECR 1891: pursuant to Article 10 EC (equivalent provisions now found in Article 4(3) TFEU), national courts are obliged to construe legislation passed in order to implement a directive in a manner consistent therewith, insofar as they have discretion to do so under domestic rules
 Duty restated and strengthened in Case C-106/89 Marleasing [1990] ECR I-4135: where a national court is called upon to interpret national law, whether the provisions in question were adopted before or after the directive concerned, it is required to do so, so 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
 Duty of consistent interpretation can act as alternative to direct effect where directive’s provisions are not sufficiently clear / precise / unconditional (see above)
But in addition, duty of consistent interpretation can act as alternative to direct effect where dispute is between two private parties and directive cannot have HDE, e.g. Case C-2/97 Società Italiana Petroli v Borsana [1998] ECR I-8597; Case C-343/98 Collino v Telecom Italia [2000] ECR I-6659; Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835; Case C-350/03 Schulte [2005] ECR I-9215
Indeed, seems that duty of consistent interpretation can apply where Member State seeks favourable construction of national law, in conformity with directive which has not yet been correctly implemented, against private party, e.g. Case C-142/04 Aslanidou [2005] ECR I-7181; Case C-321/05 Kofoed [2007] ECR I-5795
 However, duty of consistent interpretation limited to construing national legislation “so far as possible” to comply with unimplemented directive; CJEU does not require domestic courts to adopt contra legem interpretation which text cannot reasonably sustain, e.g. Case C-105/03 Pupino [2005] ECR I-5285; Case C-212/04 Adeneler [2006] ECR I-6057
 Moreover, duty of consistent interpretation also limited by general principles of Union law – especially legal certainty and non-retroactivity of criminal obligations, e.g. Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969; Case C-168/95 Luciano Arcaro [1996] ECR I-4705; Case C-387/02 Berlusconi [2005] ECR I-3565
iii) Directives embodying Treaty provisions / general principles of Union law
 Some directives deemed by CJEU merely to embody substantive rules already contained in Treaty provisions, and therefore enforceable even between private parties, even if directive itself has not been correctly implemented, e.g. Equal Pay Directive and Article 141 EC (now Article 157 TFEU) in Case C-381/99 Brunnhofer [2001] ECR I-4961

 Some directives deemed by CJEU merely to embody general principles of Union law, and as such also deemed enforceable between private parties, even if directive itself has not been correctly implemented, e.g. Equal Treatment Framework Directive and general principle of Union law prohibiting discrimination on grounds of age in Case C-144/04 Mangold [2005] ECR I-9981, Case C-555/07 Kücükdeveci ECR I-00365
 In Case C-684/16 Max-Planck v Shimuzu EU: C:2018:874 there was no consensus as to whether the Directive in question had been correctly implemented, so the Court decided the relevant national legislation must be interpreted in a way that was consistent with the Charter, or set aside the national legislation. It is unclear whether this was because the Charter has horizontal direct effect, or because the relevant provision of the Directive does (so has horizontal direct effect of a Directive been recognised?).
iv) “Incidental effects” caselaw
 Enforcement of unimplemented directive vertically against Member State will sometimes have certain “incidental effects” for private parties without amounting to prohibited horizontal direct effect, e.g. Case C-201/02 Delena Wells [2004] ECR I-723:
 However, can sometimes be very difficult to draw plausible distinction between: a) enforcing vertical obligation of Member State, which has merely incidental effect upon private party; and b) recognising straightforward horizontal direct effect of unimplemented directive
 This problem well illustrated by caselaw under Directive 83/189 (now Directive 98/34): Case C-194/94 CIA Security International [1996] ECR I-2201; Case C-443/98 Unilever Italia v Central Food [2000] ECR I-7535 , i.e. Member State’s failure to notify certain draft legislation to Commission renders disputed rules inapplicable even in disputes between two private parties
v) Francovich right to reparation
 Discussed in greater detail below, but for now, basic principle: hold Member State responsible for losses incurred through claimant’s inability to rely on unimplemented directive against private party based on Cases C-6 and 9/90 Francovich [1991] ECR I-5357, e.g. Cases C-178-179 and 188-190/94 Dillenkofer [1996] ECR I-4845
 However, compensation is not automatic. Depends upon Member State having committed “sufficiently serious breach” of its obligation to implement, e.g. Case C-392/93 R v HM Treasury, ex parte British Telecommunications [1996] ECR I-1631
4) Decisions
 Article 288 TFEU: A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
 Decision is directly effective vis-à-vis its addressee(s): Case 9/70 Franz Grad [1970] ECR 825; Case C-80/06 Carp [2007] ECR I-4473
II) The principle of supremacy
NB: Often referred to as the principle of primacy (see e.g. Chalmers et al. European Union Law: Text and Materials (CUP, 3rd ed., 2014), Chapter 5)
1) The CJEU’s view
• Full implications of principle of supremacy made clear in Case 106/77 Simmenthal [1978] ECR 629:
“…those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but – in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States – also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions.
[…]
every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule.”
• CJEU expects unconditional supremacy over all conflicting provisions of national law, e.g. Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; Case C-224/97 Erich Ciola [1999] ECR I-2517
 However, principle of supremacy requires mere disapplication of national rules insofar as incompatible with Union law
 does not imply their invalidity (nor their disapplication in situations falling outside scope of Union law), e.g. Case C-10/97 INCOGE [1998] ECR I-6307
 though does not relieve Member State of its obligation formally to bring national law into compliance with Treaty obligations (as enforced through Article 258 proceedings (ex-Article 226 EC), e.g. Case 96/81 Commission v Netherlands (Bathing Water Directive) [1982] ECR 1791
 Moreover, principle of supremacy may have to give way, in particular situations, to other general principles of Union law (such as legal certainty), e.g. Case C-108/01 Asda Stores [2003] ECR I-5121; Case C-161/06 Skoma-Lux [2007] ECR I-10841; Case C-345/06 Heinrich ECR I-01659. Also, e.g. Case C-453/00 Kühne & Heitz [2004] ECR I-837; Case C-234/04 Kapferer [2006] ECR I-2585; Cases C-392 & 422/04 i-21 Germany [2006] ECR I-8559; Case C-2/08 Fallimento Olimpiclub [2009] ECR I-7501; Case C-40/08 Asturcom [2009] ECR I-9579
2) The national view of EU supremacy
i) The UK
 On the one hand, principle of Parliamentary sovereignty and doctrine of implied repeal under English constitutional law, e.g. Madzimbamuto v Lardner-Burke [1969] 1 AC 645.
 On the other hand, sections 2(2) and 2(4) European Communities Act 1972: all rights created by and obligations arising under the Treaty of Rome are without further enactment to be given legal effect within the United Kingdom, and any enactment “passed or to be passed” shall be construed and have effect subject to those Treaty rules.
 Compromise reached through fiction of “implied supremacy clause” by House of Lords in R v Secretary of State for Transport, ex parte Factortame (No 2) [1990] 3 WLR 818; and R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1. Subject to reservation voiced by Lord Denning in Macarthys Ltd v Smith [1979] 3 All ER 325.
I.e. supremacy of Union law derives from exercise of Parliamentary sovereignty – and thus takes effect subject to limits imposed by Parliament.
 See later judgments : Thoburn v Sunderland City Council [2002] 4 All ER 156, R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3.
 This is the view of the courts, the legislative position is found in section 18 of the European Union Act 2011:
Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.
 What about Brexit?
 The outcome of the United Kingdom European Union Membership Referendum on 23 June 2016 was not binding i.e. a popular vote could not in itself constitute a decision to leave the EU.
 The triggering of Article 50 required parliamentary backing, the final leave deal will need to be approved by Parliament (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).
 Is Article 4 of the Draft Withdrawal Agreement (14 November 2018) a supremacy clause requiring Parliament to bind future Parliaments?
ii) Germany
 Early caselaw and clashes over fundamental rights protection:
– judgments of Federal Constitutional Court in Solange I [1974] 2 CMLR 540; and Solange II [1987] 3 CMLR 225
 Subsequent caselaw concerning ratification of Maastricht Treaty / concerns about respect for and enforcement of principle of attributed powers:
– judgment of Federal Constitutional Court in Brunner [1994] 1 CMLR 57
 Further caselaw involving clashes over fundamental rights protection / compliance with principle of proportionality:
– culminating in judgment of Federal Constitutional Court in Bananas (2000) 21 HRLJ 251
 Recent rulings of the Federal Constitutional Court:
– Constitutionality of the Lisbon Treaty (BVerfG Judgment of 30 June 2009)
– Honeywell judgment (BVerfG Judgment of 26 August 2010)
 And of the CJEU: preliminary reference to the CJEU from the Federal Constitutional Court on ECB’s OMT decision (Case C-62/14 Gauweiler and Others v Deutscher Bundestag EU:C:2015:400)
iii) Poland
 See the recent rule of law crisis in Poland as an example of (the supremacy of) EU law constraining political and judicial activity at MS level.

 Poland introduced a new law on retirement of Supreme Court judges which the European Commission believes is incompatible with EU law because it undermines the principle of judicial independence (Article 19(1) TEU and Article 47 Charter of Fundamental Rights of the European Union).

 During the summer of 2018, the Polish authorities failed to respond to the Commission’s concerns so they have moved to the next stage of the infringement procedure and referred the case to the CJEU (Case C-619/18 Commission v Poland judgment pending)

 On 19 October 2018 the CJEU made an interim order to suspend the application of the disputed national law.

 Parallel cases on the impact of the rule of law crisis in Poland on the European Arrest Warrant (and, therefore, principle of mutual trust: Case C-218/18 LM) and a preliminary reference from the Polish Supreme Court on the interpretation of the principle of judicial independence non-discrimination on the grounds of age in EU law (submitted 2 August 2018).

 Consider the extent to which the CJEU is motivated by the fact the (domestic) judiciary has a role in interpreting and upholding EU law (in the Polish legal system) so its independence is vital for effectiveness and uniformity of EU law.
4) Supremacy and constitutional reform
 Article I-6 of the Treaty establishing a Constitution for Europe 2004: “[t]he Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States”
 Declaration No 17 annexed to the Final Act of the Treaty of Lisbon 2007:
– recalls existing jurisprudence of CJEU on principle of supremacy of Union over national law “under the conditions laid down by the said case law”
– refers to opinion of Council Legal Service according to which “[t]he fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice”
5) How much power does the principle of supremacy grant the EU?
 On the one hand, it demands that an incompatible norm of domestic law is set-aside i.e. EU law will always prevail.

 On the other, there are norms/principles that can ‘outrank’ the supremacy of EU law, e.g. other general principles of EU law (principle of legal certainty – see above), e.g. MSs’ own constitutional arrangements.

 Equally, it is only a valid provision of EU law that can have supremacy, i.e. consider interaction with attributed powers, legality review, fundamental rights review etc… and a provision needs direct effect to be helpful for the enforcement individual rights.

 And, EU law only has supremacy so long as EU law continues to apply within each MSs i.e. the impact of withdrawal on supremacy: does withdrawal signal the end of supremacy…?
III) The principles of effective judicial protection
1) General rules on effective enforcement of Union law rights
 Article 19 TEU: Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
 Article 47 Charter of Fundamental Rights: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal…”
 In absence of specific Union legislation, presumed that rights derived from Treaty will be enforced in accordance with existing national remedies / procedural rules, e.g. Case 179/84 Bozzetti [1985] ECR 2301; Case C-271/91 Marshall II [1993] ECR I-4367
 However, Court of Justice has constructed various principles of effective judicial protection which can rebut presumption of national procedural autonomy
i) Access to judicial process
o Article 6(1) ECHR: in the determination of his / her civil rights and obligations or of any criminal charge against him / her, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
o Case 222/84 Johnston v Chief Constable of the RUC [1986] ECR 1651: also recognised as general principle of Union law
– includes additional “flanking” rights, e.g. Case 222/86 Heylens [1987] ECR 4097; Case C-185/97 Coote [1998] ECR I-5199
ii) Principle of equivalence
o Union claims must not be treated less favourably than comparable national claims, e.g. Cases C-295-298/04 Manfredi [2006] ECR I-6619; Case C-326/96 Levez [1998] ECR I-7835
iii) Principle of effectiveness
o Exercise of Union rights must not be rendered virtually impossible or excessively difficult, e.g. Case 199/82 San Giorgio [1983] ECR 3595; Case C-213/89 Factortame [1990] ECR I-2433
2) Right to reparation under Francovich case-law
 Cases C-6 and 9/90 Francovich [1991] ECR I-5357:
“The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.
[…]
It follows that the principle whereby a State must be liable for loss and damage caused to individuals as a result of breaches of Community law for which the State can be held responsible is inherent in the system of the Treaty.”
i) Substantive conditions for right to reparation
 Developed in Cases C-46 and 48/93 Brasserie du Pecheur and Factortame III [1996] ECR I-1029 and Cases C-178-179 and 188-190/94 Dillenkofer [1996] ECR I-4845
Intention to confer rights on individuals
 Directly effective provisions generally covered, e.g. Cases C-46 and 48/93 Brasserie du Pecheur and Factortame III [1996] ECR I-1029
 Non-directly effective provisions may also be covered, e.g. Cases C-6 and 9/90 Francovich [1991] ECR I-5357; e.g. Case C-91/92 Faccini Dori [1994] ECR I-3325
 But not every provision of Union law covered: consider, e.g. Case C-222/02 Peter Paul [2004] ECR I-9425
Sufficiently serious breach of Union law
 Case C-278/05 Robins [2007] ECR I-1059 (para 70): the condition requiring a sufficiently serious breach of Community law implies manifest and grave disregard by the Member State for the limits set on its discretion.
 For these purposes, take into account the factors listed in Brasserie: clarity and precision of the rule breached; measure of discretion left by that rule to national or authorities; whether infringement and damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable; whether position taken by Union institutions may have contributed towards breach.
On any view, breach of Union law clearly sufficiently serious if persisted despite judgment finding infringement to be established, or preliminary ruling / settled case-law from which clear that conduct constituted infringement.
E.g. Cases C-46 and 48/93 Brasserie du Pecheur and Factortame III [1996] ECR I-1029. Also: Case C-392/93 ex parte British Telecommunications [1996] ECR I-1631
 Where the Member State had little or even no discretion, the mere infringement of Union law may be sufficient to establish the existence of a sufficiently serious breach, e.g. Cases C-178-179 and 188-190/94 Dillenkofer [1996] ECR I-4845
But not necessarily so, e.g. Case C-424/97 Haim [2000] ECR I-5123; Case C-118/00 Larsy [2001] ECR I-5063; Case C-278/05 Robins [2007] ECR I-1059
Direct causal link between breach and damage
 Brasserie: national causation rules apply (subject to principles of equivalence and effectiveness)
 Suspicions that this sometimes permits Member States (unfairly) to evade liability? Consider, e.g. judgment of German Federal Supreme Court in Brasserie itself: [1997] 1 CMLR 971
 But Court increasingly interventionist? E.g. Case C-140/97 Rechberger [1999] ECR I-3499; Case C-470/03 AGM-COS.MET [2007] ECR I-2749
ii) Exercise of right to reparation
 Brasserie: these conditions are sufficient for establishing liability (though domestic rules may still make reparation easier to obtain)
– Brasserie: domestic rules on “fault” or “bad faith” over and above criteria listed by CJEU itself
 Cases C-94-5/95 Bonifaci [1997] ECR I-3969 and Case C-373/95 Maso [1997] ECR I-4051: reparation must be adequate in relation to losses suffered
– Brasserie: exact heads of damage determined by national law; subject to principles of equivalence and effectiveness, e.g. economic losses
 Procedural conditions for exercising right to reparation also governed by national law, subject to equivalence and effectiveness, e.g. Case C-261/95 Palmisani [1997] ECR I-4025
– Brasserie: includes possible duty to mitigate losses / exhaust (adequate) alternative remedies, e.g. Cases C-397 and 410/98 Metallgesellschaft [2001] ECR I-1727; Case C-445/06 Danske Slagterier 2009] ECR I-2119
iii) Scope of Member State liability
 National legislature: Cases C-46 and 48/93 Brasserie du Pecheur and Factortame III [1996] ECR I-1029
 National executive: Case C-5/94 Hedley Lomas [1996] ECR I-2553; Case C-470/03 AGM-COS.MET [2007] ECR I-2749
 National supreme court: Case C-224/01 Köbler [2003] ECR I-10239; Case C-173/03 Traghetti del Mediterraneo [2006] ECR I-5177
 Regional / local authorities: Case C-302/97 Konle [1999] ECR I-3099
 Autonomous public law bodies: Case C-424/97 Haim II [2000] ECR I-5123
iv) Private liability in damages?
 What about an action for compensation against private individuals who breach their Union obligations?
 AG van Gerven in Case C-128/92 Banks v British Coal Corporation [1994] ECR I-1209: argued for creation of “private Francovich” modelled on the existing “public” caselaw
 But Court’s approach more nuanced in Case C-453/99 Courage v Crehan [2001] ECR I-6297:
 Signs of a more interventionist approach, though still within competition law context, in Cases C-295-298/04 Manfredi [2006] ECR I-6619, e.g. as regards right to damages; conditions for claiming damages; extent of reparation
IV) Preliminary Rulings (outline only)
 Finally: be aware that preliminary rulings offer the correct interpretation of Union law across Member States and, therefore, play an important role in shaping the relationship between the EU and national legal systems. The Court sees the preliminary reference procedure (Art 267 TFEU) as a way of ensuring that ‘the law established by the Treaties retains its Community character’ as well as ‘guaranteeing that the law has the same effect in all the Member States of the European Union’ (‘The Proceedings of the Court of Justice and Court of First Instance of the European Communities’, 22-26 May 1995 (No 15/95) para 11.

V) Withdrawal and EU law in the national legal systems

[In the final lecture, we will briefly reflect upon the challenges that a decision of a Member State to withdraw from the European Union places on our understanding of the role of EU law in national legal systems, using Brexit as a case-study. Due to the rapidly evolving nature of this area (at the time of writing, the (first?) Draft Withdrawal Agreement has been out for two days), PowerPoint slides will be provided at the start of Week 12 instead of a handout. These will be available on VITAL from Week 12 onwards.]