direct effect Flashcards
establishment/origin of principle
van gend en loos 1964
treaty provisions have vertical direct effect
If the provision/treaty article is:
1) clear
2) precise
3) unconditional (not subject to further implementation and /or no discretion or dependent on
judgment of another body)
direct effect is an aspect of the principle of effectiveness
- no problem if member states comply
- but how was union law going to be enforced if member states do not comply
- cjeu strategy- co opt national courts as partners bypassing non-compliance by member states
Horizontal direct effect
Treaty provisions can also have horizontal direct effect Defrenne v SABENA [1976]
Art 157 TFEU: “each MS shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”.
In Van Gend en Loos, the trader wanted to enforce Union law against the Dutch custom
authorities – part of the state.
In Defrenne, action was against a private company, the Belgian Airline, Sabena
vertical direct effect
: Treaty obligation falls on a Member State (relationship between the state and the individual). Such a provision, can only be enforced against the state, not horizontally against individuals.
Horizontal direct effect: the obligation falls on individuals (relationship between individuals)
secondary legislation
Article 288 TFEU: “To exercise the Union’s competences, the institutions shall adopt
regulations, directives, decisions, recommendations and opinions.”
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
regulations
Directly applicable: automatically becomes the law in all the Member States
To have direct effect: possibility for an individual to make a claim / invoke rights based on a specific legal act
If clear, precise and unconditional, regulations can have:
Vertical direct effect leonesio v italian ministry of agriculture 1971 and Horizontal direct effect
ariola v Amministrazione delle Finanze [1973]
Directives
Art 288 TFEU: “a Directive is to be binding, as to the result to be
achieved, upon each Member State to which it is addressed”.
Directives can only have vertical direct effect Marshall v Southampton Area Health Authority [1986] Vertical but not horizontal direct effect; individuals cannot be blamed for
the non-implementation of a directive
Directives can have vertical direct effect if:
- Clear, precise and unconditional (Van Duyn) and
- the date for implementation has passed
Therefore, even if, according to Art 288 TFEU, directives are
not directly applicable, and they do not automatically, after
they are adopted, become part of national law, they can
produce ‘similar effects’ to regulations, if the time limit for
their implementation has passed and the State has not
implemented them properly.
Directives will be directly effective only from the end of the
transposition period and even then, only if the MS has
failed to implement them or has not implemented them
correctly.
If the directives are correctly implemented, individual rights
will derive from the national implementing measures and
not from the directives themselves.
Foster v British Gas
Criteria: pursuant to a measure adopted by the State, for
providing a public service under the control of the State
and has for that purpose special powers beyond those
which result from the normal rules applicable in relations
between individuals.
No formal definition of the ‘state’, ‘organs of the state’,
‘emanation of the state’. It is up to the national courts to
determine, on a case-by-case basis, whether the general
approach of Foster applies or not
Estoppel
Directives impose duty on MSs to adopt implementing measures
by a certain date
-It would be wrong for the MSs to be able to rely upon and gain
advantage of their failure to carry out this obligation.
-So they are estopped/prevented from denying the direct effect of
Directives once the time limit for their implementation into
national law has expired
pubblico ministero v tullio ratti 1979
Doctrine of Indirect Effect
Doctrine of Indirect Effect
Established by the Court to bridge the gap between horizontal and vertical effect, ensure harmonisation and legal certainty.
Obligations of national courts to interpret and apply national law in a manner which is consistent with the wording and purpose of directives
Von Colson and Kamann v Land Nordrhein-Westfalen [1984]
– Also applicable in disputes between individuals;
– Also applicable if national law existed prior to the directive
Marleasing SA v La Comercial Internacional de Alimentaciòn SA [1990]
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. Article 4(3) TEU
