David Smith v Patrick Meade and Others.
Date: 2018-08-07
34


It should be noted as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (judgments of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 16 and the case-law cited, and of 31 May 2018, Zheng, C‑190/17, EU:C:2018:357, paragraph 27).
37


It must be recalled in that context that, according to settled case-law, where national courts are called on to give judgment in proceedings between individuals in which it is apparent that the national legislation at issue is contrary to EU law, it is the responsibility of the national courts to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective (see, to that effect, judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 111; of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 45; and of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 29).
38


The Court has held on more than one occasion that the Member States’ obligation arising from a directive to achieve the result envisaged by the directive, and their duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts (see, to that effect, inter alia, judgments of 10 April 1984, von Colson and Kamann, 14/83, EU:C:1984:153, paragraph 26; of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 47; and of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 30).
39


It follows that, in applying national law, national courts called upon to interpret that law are required to consider the whole body of rules of law and to apply methods of interpretation that are recognised by those rules in order to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently to comply with the third paragraph of Article 288 TFEU (see, inter alia, judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraphs 113 and 114; of 19 January 2010, Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 48; and of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 31).
40


However, the Court has held that the principle of interpreting national law in conformity with EU law has certain limits. Thus, the obligation on a national court to refer to EU law when interpreting and applying the relevant rules of domestic law is limited by general principles of law and cannot serve as the basis for an interpretation of national law that is contra legem (see, to that effect, judgments of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 25; of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 39; and of 19 April 2016, DI, C‑441/14, EU:C:2016:278, paragraph 32).
41


In that regard, it is true that the question whether a national provision must be disapplied in so far as it conflicts with EU law arises only if no interpretation of that provision in conformity with EU law proves possible (judgments of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 23, and of 10 October 2013, Spedition Welter, C‑306/12, EU:C:2013:650, paragraph 28).
42


The fact remains that the Court has also consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (see, inter alia, judgments of 26 February 1986, Marshall, 152/84, EU:C:1986:84, paragraph 48; of 14 July 1994, Faccini Dori, C‑91/92, EU:C:1994:292, paragraph 20; and of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 108). If the possibility of relying on a provision of a directive that has not been transposed, or has been incorrectly transposed, were to be extended to the sphere of relations between individuals, that would amount to recognising a power in the European Union to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations (see, to that effect, judgment of 14 July 1994, Faccini Dori, C‑91/92, EU:C:1994:292, paragraph 24).
43


Accordingly, even a clear, precise and unconditional provision of a directive seeking to confer rights on or impose obligations on individuals cannot of itself apply in a dispute exclusively between private persons (judgments of 5 October 2004, Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 109; of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 42; and of 15 January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph 36).
44


The Court has expressly held that a directive cannot be relied on in a dispute between individuals for the purpose of setting aside legislation of a Member State that is contrary to that directive (see, to that effect, judgment of 27 February 2014, OSA, C‑351/12, EU:C:2014:110, paragraph 48).
45


A national court is obliged to set aside a provision of national law that is contrary to a directive only where that directive is relied on against a Member State, the organs of its administration, such as decentralised authorities, or organisations or bodies which are subject to the authority or control of the State or which have been required by a Member State to perform a task in the public interest and, for that purpose, possess special powers beyond those which result from the normal rules applicable to relations between individuals (see, to that effect, judgments of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraphs 40 and 41; of 25 June 2015, Indėlių ir investicijų draudimas and Nemaniūnas, C‑671/13, EU:C:2015:418, paragraphs 59 and 60; and of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraphs 32 to 42).
49


It follows from the foregoing considerations that a national court, hearing a dispute between private persons, which finds itself unable to interpret provisions of its national law in a manner that is compatible with a directive, is not obliged, solely on the basis of EU law, to disapply the provisions of its national law which are contrary to those provisions of that directive that fulfil all the conditions required for them to produce direct effect and thereby to extend the possibility of relying on a provision of a directive that has not been transposed, or that has been incorrectly transposed, to the sphere of relationships between private persons.
53


In that particular situation, the Court held, in essence, that those national technical regulations were inapplicable in a dispute between individuals on the ground that non-compliance with the obligations stemming from Directive 83/189 constituted a ‘substantial procedural defect’ that had vitiated the adoption of those regulations by the Member State concerned, and that that directive, which created neither rights nor obligations for individuals, did not determine the substantive content of the legal rule on the basis of which the national court had to decide the case before it, meaning that the case-law to the effect that a directive that has not been transposed may not be relied on by one individual against another was not relevant in such a situation (see, to that effect, judgments of 30 April 1996, CIA Security International, C‑194/94, EU:C:1996:172, paragraph 48, and of 26 September 2000, Unilever, C‑443/98, EU:C:2000:496, paragraphs 44, 50 and 51).
56


That said, it must be recalled that, in a situation such as that at issue in the main proceedings, a party adversely affected by the incompatibility of national law with EU law or a person subrogated to the rights of that party could however rely on the case-law stemming from the judgment of 19 November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428), in order to obtain from the Member State, if appropriate, compensation for any loss sustained (see, by analogy, judgments of 19 April 2007, Farrell, C‑356/05, EU:C:2007:229, paragraph 43, and of 24 January 2012, Dominguez, C‑282/10, EU:C:2012:33, paragraph 43).