Case C 268/06, Impact

National courts required to apply directly effective provisions of Community law even if not been given express jurisdiction to do so under domestic law.

A 2003 Irish Law on the Protection of Employees transposed Directive 1999/70 into Irish law. In a dispute between a Irish trade union against the government departments which employed them, the referring court asked whether, notwithstanding the absence of any express provision to that effect in the relevant national law, a national court or tribunal which was called upon to decide a case concerning an infringement of the legislation transposing Directive 1999/70 was required by Community law to hold that it also had jurisdiction to hear and determine claims based directly on that directive itself, where such claims related to a period after the deadline for transposing the directive concerned, but before the date of entry into force of the transposing legislation giving it jurisdiction to hear and determine claims based on that legislation.

The Grand Chamber of the Court of Justice first of all reiterated that the freedom to choose the ways and means of ensuring that a directive was implemented did not affect the obligation imposed on all Member States to which the directive was addressed to adopt all the measures necessary to ensure that the directive concerned was fully effective in accordance with the objective which it pursued.

The Member States’ obligation arising from a directive to achieve the result envisaged by Directive 1999/70 and their duty under Art. 10 EC to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation was binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts. It was the responsibility of the national courts in particular to provide the legal protection which individuals derived from the rules of Community law and to ensure that those rules were fully effective. (see, inter alia,
Case 14/83, von Colson and Kamann and Case C-432/05 Unibet)

The Court reiterated that the principles of equivalence and effectiveness furthermore required that the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those governing similar domestic actions and must not render practically impossible or excessively difficult the exercise of rights conferred by Community law. (see, of course,
Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral and subsequent case law).

The Court held that those requirements applied equally to the designation of the courts and tribunals having jurisdiction to hear and determine actions based on Community law. A failure to comply with those requirements at Community level was liable to undermine the principle of effective judicial protection.

The Court found that where individuals intended – as the complainants did in the present case – to rely on the, albeit optional, jurisdiction which the national legislature, when transposing Directive 1999/70, conferred on specialised courts to hear and determine disputes arising from the 2003 Act, the principle of effectiveness required that those individuals should also be able to seek before the same courts the protection of the rights which they could derive directly from the directive itself, if it should emerge from the checks undertook by the referring court that the obligation to divide their action into two separate claims and to bring the claim based directly on the directive before an ordinary court led to procedural complications liable to render excessively difficult the exercise of those rights conferred on the parties by Community law

If the referring court were to find such an infringement of the principle of effectiveness, it would be for that court to interpret the domestic jurisdictional rules in such a way that, wherever possible, they contributed to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law.

The Court furthermore added that the principle that national law must be interpreted in conformity with Community law required national courts to do whatever lay within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question was fully effective and achieving an outcome consistent with the objective pursued by it.

Also, the Court found that in so far as the applicable national law contained a rule that precluded the retrospective application of legislation unless there was a clear and unambiguous indication to the contrary, a national court hearing a claim based on an infringement of a provision of national legislation transposing Directive 1999/70 was required, under Community law, to give that provision retrospective effect to the date by which that directive should have been transposed only if that national legislation included an indication of that nature capable of giving that provision retrospective effect.

Text of judgment