7. Interpretation of Provisions that Grant Individual Rights

Cf., e.g. Case C-165/91 Van Munster [1994] ECR I-4661, para 34; Case C-262/97 Engelbrecht [2000] ECR I-7321, para 39; and Case C-327/00 Santex [2003] ECR I-1877, para 63.

Cf., e.g. Joined Cases C-13/91 and C-113/91 Debus [1992] ECR I-3617, para 32; Case C-158/91 Levy [1993] ECR I-4287, para 9; Case C-347/96 Solred [1998] ECR I-937, para 30; Case C-262/97 Engelbrecht [2000] ECR I-7621, para 40; and Case C-327/00 Santex [2003] ECR I-1877, para 64.

Cf. Dougan (2007), pp. 932–935.

Case C-591/10 Littlewoods [2012] (OJ 2012 C 295, p. 5) (EU:C:2012:478), para 33; Case C-314/08 Filipiak [2009] ECR I-1149, para 83; Case C-337/91 van Gemert-Derks [1993] ECR I-5435, para 33; and Joined Cases C-10/97 to C-22/97 IN. CO. GE. 90 and Others [1998] ECR I-6307, para 21.

Cf. Case C-591/10 Littlewoods [2012] (OJ 2012 C 295, p. 5) (EU:C:2012:478), para 31, cf. also Case C-326/96 Levez [1998] ECR I-7835, para 42, and Case C-231/96 Edis [1998] ECR I-4951, para 36.

Cf. Schermers and Vaelbrock (2001), p. 15.

Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40). Cf., now, Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).

Case C-450/93 Kalanke [1995] ECR I-3051, para 22, cf., also, para 24. The ruling in Kalanke in particular sparked some doubt as to how far Member States could go in taking positive action to promote equality. Ultimately, Article 141(4) TEC(A) was added, corresponding to what is now Article 157(4) TFEU, under which ‘the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers’. The current Directive has also rephrased the options for those taking positive action: ‘Member States may maintain or adopt measures within the meaning of Article 141(4) of the Treaty with a view to ensuring full equality in practice between men and women in working life’, cf. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23), Article 3. It is unclear, however, whether the scope of the derogation has been significantly widened. The ruling in Case C-407/98 Abrahamsson [2000] ECR I-5539 suggests, on the contrary, that the alteration of the Treaty has not had any great impact.

Davies (2013), p. 60.

Joined Cases C-283, 291 and 292/94 Denkavit [1996] ECR I-5063, para 27. Cf. also Case C-398/09 Lady & Kid [2011] ECR I-7375. Lady & Kid dealt with the issue of a defence against a claim for restitution of monies paid over as an unlawful tax (the Court of Justice having previously (Case C-200/90 Dansk Denkavit and Poulsen Trading [1992] ECR I-2217) declared the tax contradictory to the 6th VAT Directive (Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes—Common system of value added tax: uniform basis of assessment (OJ 1988 L 145, p. 1), Article 33. Cf., now, Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1)). Specifically, the Member State argued that the effects of the unlawful tax had been offset by the simultaneous abolishment of other taxes. The Court found that the rules on recovery of sums unduly paid had to be interpreted as precluding this sort of defence. While the ‘passing on’ defence was indeed in line with Union law, the Court found that refusing to reimburse a tax levied on the sale of goods on these grounds ‘is a limitation of a subjective right derived from the legal order of the European Union, it must be interpreted narrowly’, cf. Case C-398/09 Lady & Kid [2011] ECR I-7375, para 20.

Cf., e.g., Fennelly (1996), pp. 673–674; and Reich (2005), p. 18.

Case C-1/05 Jia [2007] ECR I-1, para 36; with reference to Case 316/85 Lebon [1987] ECR 2811, paras 22–23.

Case C-5/05 Infopaq International [2009] ECR I-6569, para 56; with reference to Case C-476/01 Kapper [2004] ECR I-5205, para 72; and Case C-36/05 Commission v Spain [2006] ECR I-10313, para 31.

Cf., in general, Dunne (2014).