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    I really cannot get my head around this case! What is the principle? I've tried reading the judgment online, but the facts seem confusing and I don't get the overarching principle coming out of it.

    Is it basically that an individual can invoke a Directive as a shield to protect himself from actions brought against him by another private party?
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    (Original post by lesbionic)
    I really cannot get my head around this case! What is the principle? I've tried reading the judgment online, but the facts seem confusing and I don't get the overarching principle coming out of it.

    Is it basically that an individual can invoke a Directive as a shield to protect himself from actions brought against him by another private party?
    I'm not 100% sure but the impression i got from it is that an individual can rely on a directive to either exclude contrary national legislation, thus meaning the state has to rely on different legislation, or to substitute the provisions of the directive instead of national law, even if the case itself is against another private party. I think this case was a case of exclusion, and sort of suggests a triangle relationship...
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    These are the facts I've got noted:

    P sought to prevent D from marketing an alarm system which had not been authorised as required by Belgian law. D argued that the requirement for this authorisation breached EU law (under some Directive), and that this breach should have been reported to the Commission, but it was not. D therefore argued that the national law requiring authorisation was inapplicable because it hadn't been validly made.
    (Basically P tried to stop D by relying on a particular law, D’s defence was that the law was incompatible with a Directive and so was not valid)

    Yeh, it means that a Directive can be used as a ‘shield’ in a case between two individuals, in that you can rely (as D did here) on the failure of the member state to properly implement a Directive to hold that the conflicting national law (or which haven't been made using the right procedure) is invalid, and thereby justify your otherwise illegal action under it.

    That might not be written well - I just lifted it from my notes.
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    Short answer: Noone knows, there are multiple explanations. The ECJ isn't keen on clear principles. Remember that CIA and Unilever are non-notification cases concerning a specific directive, there is certainly an argument to say that they are limited to this specific non-notification situation and shouldn't be applied generally.

    "Is it basically that an individual can invoke a Directive as a shield to protect himself from actions brought against him by another private party?"

    The case doesn't actually say this and I'd be extremely uncomfortable about asserting that CIA stands for this proposition without further explanation. It is the logical explanation of the CIA and Unilever cases and it is how I would describe CIA if I was limited to a single sentence or was explaining this area of law to law-newbies, but is not consistent with Pfeiffer. So its sort-of kind-of right but I'd have serious reservations about asserting this in an exam because of that, you need to have a nod towards the fact taht noone really knows what CIA stands for and how far it can be taken.

    Longer answer: http://www.thestudentroom.co.uk/showthread.php?t=923315. I'd just be repeating this post if I answered anymore so just ask if I can clarify further or if it doesn't make sense (it might not...)

    Its worth reading the articles (or commentary surrounding said articles) and AG Saggio as referred to in the linked post
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    Just to add to that - there is another case with the same principle but a different directive. I don't remember which case it is because i spent most of that lecture wishing i'd eaten lunch and not paying attention but i definitely remember that there's another case with the same principle and a different directive.
 
 
 
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