• In the case of Case C-268/06 Impact [2008] ECR I-2483, it was found that employment tribunals should have the right to hear claims in respect of directives not implemented. This case explored the framework agreement regarding fixed-term work, and the capability vertical direct effect and indirect effect.

Facts of Case C-268/06 Impact [2008] ECR I-2483

  • Ireland implemented Council Directive 1999/70/EC a year after the expiration of the implementation period
  • Successive fixed term contracts were made illegal by the Directive
  • Impact, acting on behalf of their member civil servants, complained regarding the successive fixed term contracts given between 2001 and 2003 (expiration of the implementation period and when the legislation was passed)

Issues in Case C-268/06 Impact [2008] ECR I-2483

  • Which national courts or tribunals can be called up to decide a case involving infringement of legislation?
  • Did Clause 4(1) and 5(1) have direct effect upon expiration?
  • Was the national court allowed to look at the case retrospectively in respect of the implementing legislation?

Held by the European Court of Justice

  • Clause 4(1) was capable of direct effect, however 5(1) was not. The implementing legislation could not be applied with retrospective effect.

Findings of the Court

In regard to the first issue, it is for the Member State to appoint jurisdiction on courts and tribunals where Community rules do not

  • “The Court has consistently held that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law” [44]

In respect of Clause 4(1), the Court accepted that it did have direct effect after looking to (3) of the same clause for guidance.

  • “As regards Clause 4(3) of the framework agreement, upon which Ireland also relied in order to deny Clause 4(1) direct effect, it must be observed that Clause 4(3) entrusts the Member States and/or the social partners with the definition of the arrangements for facilitating the ‘application’ of the principle of non-discrimination laid down by that clause.” [66]
  • “Such arrangements cannot therefore in any way relate to the actual substance of that principle” [67]
  • “It follows that Clause 4(1) of the framework agreement appears, so far as its subject-matter is concerned, to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court.” [68]

In respect of Clause 5(1) of the framework agreement, it did not appear to “to be unconditional and sufficiently precise for individuals to be able to rely upon it before a national court” [79], thereby not giving being capable of direct effect

  • “In prescribing the effective and binding adoption of at least one of the measures listed in Clause 5(1) of the framework agreement intended to prevent the abusive use of successive fixed-term employment contracts or relationships, where domestic law does not already include equivalent measures” [70]
  • “the Court cannot accept the Commission’s suggestion that Clause 5(1) of the framework agreement also establishes such minimum material protection in that, in the absence of any other measure intended to combat abuse or at least of any sufficiently effective, objective and transparent measure to that end, it requires objective reasons to justify the renewal of successive fixed-term employment contracts or relationships.” [75]

Retrospectivity where direct effect does not apply: the Court looked at Clause 5(1) here as it was not sufficiently clear and unconditional to have direct effect.

  • Where national law does not include a rule to preclude retrospective application, “Community law – in particular the requirement for national law to be interpreted in conformity with Community law – cannot be interpreted as requiring the referring court to give section 6 of the 2003 Act retrospective effect to the date by which Directive 1999/70 should have been transposed, as the referring court would otherwise be constrained to interpret national law contra legem” [103]

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