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Directives & Remedies - Solved Problem Question
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Directives and Remedies topic in EU Law - Solved problem question - UoL LLB second year subject.
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Mahnoor Tariq Directives & RemediesQ: Fictitious Directive on shops’ opening times requires that shops should close at least
one day a week throughout Europe. Spain has not implemented the directive by the
deadline and has no intention of doing so in the near future as it considers the directive
“yet another piece of abusive EU law”. Carlos manages a few grocery stores in Madrid and
always closes for a day during the weekend. Yet, larger supermarkets never close, and
Carlos has lost important business as a result. He has evidence of such loss of business
provided by a study he commissioned with an important consulting company. Carlos
considers suing several of those large supermarkets and asking for compensation. He
comes to you to find out whether he could use the Directive on shops’ opening times to
help his case. Advise Carlos.
This question pertains to discuss the non-implementation of a directive, which confers a loss
on an individual, who is now seeking a remedy for compensation. The issues to be dealt with
are: is the directive in question directly effective; was its non-implementation a breach of EU
law; was this breach a grave and serious infringement of a Carlos’s rights within EU law; was
there a causal link between Spain’s breach of EU law and the loss suffered by Carlos; and can
Carlos claim compensation under Spanish law.
Art.288 TFEU provides that a directive shall be binding as to the result to be achieved upon
each Member State (MS) to which it is addressed. A directive can only be directly effective
after the expiry of the time limit given for its implementation (Ratti). Per the facts, Spain has
not implemented the directive on shop’ opening times by the deadline. During the period
prescribed for transposition of a directive, MS must refrain from taking measures that could
compromise the attainment of the result prescribed by the directive (Wallonie). In Faccini
Dori, the Court confirmed that Directives can only have a vertical direct effect (DE) i.e., an
individual can bring a claim against MS, but not another individual. Here, Carlos needs
advice for his claim against Spain, thus the fictitious directive is directly effective.
Firstly, Carlos needs to know that the enforcement of EU law rights by individuals or legal
persons/companies take place in domestic courts, and the remedies obtainable are those
available under national law. These remedies must be effective, adequate, should act as a
deterrent and guarantee real and effective protection (Rewe Zentralfinanz). In Marshall,
when a woman’s claim for unfair dismissal was subjected to an upper limit which prevented
her from receiving full compensation, the concerned Directive required that the remedy
chosen by the state must be adequate and effective. The remedy of state liability is an
exception to this which Carlos can rely on. Moreover, in Von Colson, CJEU stated that a
national court must interpret the national law in light of the wording and the purpose of the
relevant Community law in order to ensure an adequate and effective remedy – the remedy
must have a deterrent effect, and so the compensation must be adequate in relation to the
damage sustained.
Secondly, to establishing Spain’s breach of EU law, the rule in ex parte Factortame needs to
be satisfied. Here, CJEU stated that in order to ensure the full effectiveness of Community
law, a national court which considers that the obstacle which precludes it from granting
interim relief is a rule of national law, must set aside that rule. Hence, the requirement that
national remedies for breach of Community law rights should be adequate and effective, is a
universal requirement. The Court was aiming to give maximum possible effect to Community
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