Brief : 194325 Delivery Date : 29 March 2007 Title: Download a case from the Europa website. Find the ECJ judgment for criminal proceedings against Kolpinghuis Nijmegen BV 80/86. Based upon this download of the judgment, answer all of the following questions. ANSWER Source: Judgment of the Court (Sixth Chamber) of 8 October 1987. Criminal proceedings against Kolpinghuis Nijmegen BV. Reference for a preliminary ruling: Arrondissementsrechtbank Arnhem - Netherlands. Case 80/86. European Court reports 1987 Page 03969 A. In no more than 100 words summarise the material facts of this case. A Netherlands company was prosecuted for selling a drink consisting of tap-water and carbon dioxide which it called mineral water. The company was charged with infringing a national law banning the sale of goods of improper composition. Directive 80/777, which stipulates that member states ensure that only water acknowledged by a relevant authority as natural mineral water meeting the Directiveâ€™s specifications are marketed as natural mineral water was cited by the prosecutor. Directive 80/777 required national transposition by July 1984. The alleged crime at issue was committed in August 1984. The applicable Dutch law was not amended until August 1985. (100 words total) Reference: Judgment paras 2 and 3. B. Which court did this case commence in, who brought the action, and who was the defendant? This criminal case was commenced at the Arrondissementsrechtbank (District Court) at Arnhem in The Netherlands. The action was instigated by the local public prosecutor, the Officier van Justitie. The Dutch undertaking Kolpinghuis Nijmegen BV was the defendant in the action. Reference: Judgment Headnote C. Identify the party/body who/which referred this case to the European Court of Justice, and, identify the procedure by which this was done. It was the Arrondissementsrechtbank (District Court) at Arnhem that referred this case to the European Court of Justice under Article 177 of the Treaty of Rome (which is now set out in Article 234 of the Treaty as amended by the Treaty of Amsterdam). The reference was made to obtain a preliminary ruling on the extent of Directive 80/777 in the criminal proceedings pending before the District Court against Kolpinghuis Nijmegen BV. The Article 177 (now 234) procedure is known as the preliminary ruling procedure. Such rulings provide national courts with guidance on the interpretation of EU law and are so called because they are used to inform the final ruling, which is delivered by the national court itself. Reference: Judgment Headnote D. Identify the parties which intervened in the present case. The following parties all saw fit to intervene in the case by way of submitted observations: the Netherlands state, the United Kingdom, the Italian Government, and the Commission of the European Communities. Reference: Judgment Headnote E. With reference to the European Court of Justice's ruling explain why Directive 80/777 itself could not have been enforced against the defendant in your own words, . Direct effect is subject to a major restriction. So-called vertical direct effect, which involves an action by a private party against the state, is deemed permissible and effective, but what is known as horizontal direct effect, which describes an action between two private parties, is not supported by the doctrine. The reason for this distinction is that the obligation to transpose Directives effectively, accurately and in a timely manner is exclusively imposed on the member state itself.. A failure to implement properly thus constitutes a breach of the member stateâ€™s Treaty obligations. The European Court of Justice confirmed the scope of the doctrine of direct effect in this case and cited the very well known case of Marshall v South-West Hampshire Area Health Authority (1986) ECR 723, which emphasised the point that vertical direct effect (against the state) is allowed but that horizontal direct effect (where a suit lies against a private individual) is not viable. The Court in the present action endorsed the Marshall line without equivocation and ruled that it followed that Directive 80/777 could not per se create law applicable to the defendant undertaking and that as a consequence the provisions of Directive 80/777 could not be founded on as such in any criminal proceedings against the defendant undertaking before the national court in question. Reference: Judgment paras 6 to 10. F. With reference to the European Court of Justice's ruling explain the reasoning why, in general, a national court is required to interpret national law to conform with an EC Directive. The first point to confirm is that all forms of binding EU law are supreme over all forms of national law. The principle of the sovereignty of EU law over the domestic laws of the member states is very well established: foundation authorities for the rule include Costa v ENEL (1964) ECR 585 and Van Gend en Loos (1963) ECR 1.. In the present case the Court of Justice cited Von Colson and Kamann v Land Nordrhein-Westfalen (1984) ECR 1891 and ruled that the member statesâ€™ duty to accomplish the objectives entailed in the Directive and their obligation under Article 5 of the Treaty to take all proper steps, whether general or particular, to guarantee the fulfilment of that obligation, is binding on all the authorities of member states including the national courts in relation to matters within their jurisdiction.. As a result the Court in the present case found that, in interpreting and applying the national law and in particular the provisions of a national law introduced so as to transpose the objectives of a Directive, the national court must read the national law with a view to finding, where possible, conformity with the purpose and content of the Directive. The Court confirmed that this was necessary so as to satisfy the relevant duty contained in Article 189 of the Treaty of Rome. Reference: Judgment para 12. G. With reference to the ruling identify in which situation the general requirement as stated above in Q.F would not be applicable. It was held by the Court of Justice that the duty imposed on the national court to refer to a Directiveâ€™s content when interpreting and applying the pertinent laws of its national legal system is restricted by the general principles of EU law and specifically the principles of non-retroactivity and legal certainty. In the case Pretore de Salo (1987) 1 CMLR 108 the European Court found that a Directive cannot, per se have the effect of imposing criminal liability or aggravating the criminal liability of an individual who acts in breach of its provisions independently of a national law adopted by a member state for the implementation of the Directive.. Reference: Judgment para 13. H. Explain why the European Court of Justice did not consider if there had been an infringement of Article 2 of the Keuringsverordening (Inspection Regulation). This was simply not a matter for the European Court. The European Court of Justice does not have jurisdiction over the matter of the infringement of Article 2 of the Keuringsverordening, because that is exclusively a question of Dutch law for the Dutch Courts. It has no bearing on or relation to EU law, which is the European Courtâ€™s sole province. The Article 177 (now Article 234) preliminary ruling process empowers the European Court only to interpret EU law. It does so to provide guidance to the referring party on questions of EU law so that the referring party can apply the EU law accurately and with confidence when it makes the final ruling in a case.. The Article 234 procedure does not give the European Court the freedom to rule on the application shape or form of national law. Reference: Treaty of Rome Article 234(1) I. Supposing that a private company, Volga Water Ltd, was prosecuted by the officer Van Justitie for the exact same violation as Kolpinghuis but in its case the violation took place on the 9th August 1985. Explain to what extent, if at all, the indirect effect principle could apply? Under this scenario Volga Water Ltd have allegedly committed an offence the day after the transposition of Directive 80/777 into Dutch law. Presuming the transposition has been effective there should be no need for the application of the indirect effect principle set out in cases such as Von Colson and Kamann v Land Nordrhein-Westfalen (as cited). If the domestic law now faithfully reflects the content, tone and goals of the Directive then the Directive has done its job and EU law can be properly and accurately applied merely by relying on the new or amended Dutch law in question.. If the new or amended Dutch law does not properly transpose the Directive then it could be possible to invoke the doctrine of indirect effect as set down in Von Colson. In Marleasing  1 CMLR 305 the Court of Justice reaffirmed the Von Colson line that national courts must as far as possible interpret national law in the light or the wording and purpose of the Directive in order to achieve the result intended by the Directive, although it reiterated the Marshall view that a Directive cannot impose obligations on private parties per se. It is submitted that the present case of Kolpinghuis Nijmegen confirms that where an interpretation of domestic law would run counter to the legitimate expectations of private individuals then the Von Colson principle will not apply. Therefore the application of the doctrine of indirect effect would be limited in this criminal context and it would be necessary to ascertain further particulars as to the precise nature of the implementation that has taken place in order to be able to offer more specific advice in this regard. Europa Case Reference: http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61986J0080 THE END GLOBAL DOCUMENT WORD COUNT : 1626 words EXACT COUNT FOR ANSWER ONLY : 1520 words No footnotes or bibliography as per client request.