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In cases where national law conflicts with EU law, the primacy of EU law dictates that EU law takes precedence. However, indirect effect requires national courts to interpret national law in line with EU law, but not "Contra Legem" (i.e., courts should not reinterpret national law in a way that contradicts its clear wording). If national law clearly contradicts EU law, it should not be reinterpreted to align with EU law.

Under what circumstances does primacy require national courts to disregard national law, and when should indirect effect with the principle of "No Contra Legem" be used?

user80812
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2 Answers2

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If there's a clear conflict

Let's for a moment assume, that Ruritania is part of the EU. Ruritanian Law from before the joining dictates, that to rent a flat for more than a month in Ruritania, you need to be a Ruritanian Resident or have a certified Foreigner Card.

EU law now states that all EU citizens shall be allowed to move and live in any EU country with just a personal document of their EU citizenship.

Now, if the court is free to reinterpret the law to read "Foreigner Card means EU personal document too", all would be clear. But let's presume that the definitions are very clear that this interpretation is not doable because the Foreigner Card has strict format restrictions (e.g. must be certified by some specific authority, and a blanket authorization of replacements isn't possible). Then the court has to apply No Contra Legem and can not do the reinterpretation. The law can not be applied against EU citizens under no contra legem. But it can be applied against non-EU citizens, as EU law allows such rules against non-EU citizens.

Trish
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Direct effect

The principle of direct effect was established in the case of Van Gend en Loos. The requirements are:

  • The EU provision must be sufficiently clear and precise to give rise to an identifiable individual right.
  • The EU provision must not be conditional on the member state taking any measure in relation to its implementation or effects.
  • It must place a positive and not a negative obligation on the state.
  • Treaties, regulations, and decisions are capable of vertical direct effect (private entities vs member states and their emanations) and horizontal direct effect (private entities vs private entities).
  • Directives are only capable of vertical direct effect.
  • In the case of directives, the implementation date (the date by which member states must implement the directive via national law) must have passed.
  • Unimplemented directives are not directly effective in cases that would determine or aggravate criminal liability of a private entity.

Indirect effect

This principle was first established in Von Colson & Kamann v Land Nordrhein-Westfalen. The requirements are:

  • There is some conflict between national and EU law.
  • It doesn't matter whether the claim is vertical or horizontal.
  • The national court must only interpret the national law "as far as possible" in order to achieve the purpose of the EU provision.
  • In the case of directives, the implementation date must have passed.
  • Unimplemented directives are not indirectly effective in cases that would determine or aggravate criminal liability of a private entity.

State liability

You didn't ask about this but I'll mention it for completeness. In cases where neither direct effect nor indirect apply, private entities may still be able to rely on the principle of state liability against member states.

JBentley
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