Direct Effect Flashcards
Direct Effect, Indirect Effect and Incidental Effect
- what is the central tension in CJEU’s case law?
- The central tension in the CJEU’s case law is between, on the one hand, the promotion of the effective application of EU law before national courts and, on the other, the application of rules and principles that serve legitimate concerns such as preservation of legal certainty yet obstruct EU law.
- Your view as to why EU law penetrates domestic law (and why a line is drawn between invocable and non-invocable provisions) will determine whether you think these different mechanisms are acceptable
Direct Effect, Indirect Effect and Incidental Effect
Two models to understand the principles of direct effect and supremacy:
- Primacy model:
supremacy is a “constitutional fundamental” of the EU, and produces various consequences for the settlement of disputes pending before national courts. Particularly, it is capable of producing certain legal effects independently of the principle of direct effect (and without reference to the latter’s threshold criteria), such as exclusionary effect (i.e. the setting aside of national rules incompatible with EU law). Here, the principle of direct effect is neither necessary nor even relevant: the question is merely whether there exists an incompatibility between EU and national law.
o Exclusionary effect is distinguished from substitutionary effect (i.e. the direct and immediate application of EU law so as to create new rights or obligations derived from the Treaties which do not already exist within the national legal system). This is the domain of direct effect.
- Trigger model:
supremacy is merely a remedy administered by domestic courts in the resolution of disputes involving EU law, available in cases involving a conflict between EU and national law, but can only be invoked when EU law has been rendered cognizable before domestic courts by satisfying the threshold criteria of direct effect. Thus, direct effect encompasses every situation where EU norms produce independent effects within the national legal systems; it enjoys a monopoly over rendering EU norms justiciable before national courts.
Direct Effect, Indirect Effect and Incidental Effect
Are the trigger model and primacy model the same?
These two models (1) often produce the same results or (2) are both equally incapable of solving problems. But they clash in certain situations, especially the Notification Directive (CIA Securities and Unilever):
- The “trigger model” would see the CJEU’s reasoning as suggesting an exception to the rule in Marshall/Faccini Dori that directives cannot of themselves impose obligations on individuals (but can still fit into the trigger model because the Directive can in theory be seen as having direct effect so as to impose (of itself) obligations on individuals).
- The “primacy model” would argue that the true explanation is the fact that the exclusionary effect of the principle of supremacy in and of itself requires the national court to set aside conflicting domestic laws (even in the context of private litigation).
Direct Effect, Indirect Effect and Incidental Effect
Is there any support for the primacy model?
There is some support for the primacy model (Ruiz Bernaldez, Pafitis), but more recent caselaw appears to undermine the persuasiveness of the model:
- Pfeiffer: the “primacy model” could have argued that this was simply a case of exclusionary effect – the Directive simply set aside the conflicting German law so that this is not a case of horizontal direct effect at all. But this approach was not taken by the CJEU
- Berlusconi (concerning a criminal prosecution for false accounting, where newly enacted (more lenient) Italian legislation was incompatible with a set of EU Directives, whereas old legislation (in force at the time the crime was committed, but the new legislation applied retroactively) was compliant. The question was whether the prosecuting authorities could use the old legislation):
o AG Kokott suggested (in line with the primacy model) that there was no bar to public authorities seeking to rely on the misimplemented Directive because this was not a case of substituting new rules derived from the Directive but a case of excluding provisions of national law that did not comply with the Directive.
o However, the CJEU did not accept the line of analysis – holding that the retroactive application of a more lenient criminal penalty is a general principle of EU law, but difficulties arise in a situation where the more lenient penalty is itself alleged to be incompatible with EU law. But the CJEU did not address this difficulty – simply, the obligation to impose effective and dissuasive sanctions for false accounting derived from an EU Directive, which cannot of themselves impose obligations on individuals and cannot therefore have HDE, specifically have the effect of determining/aggravating the criminal liability of persons who act in contravention of that Directive.
o Thus, not possible to apply the old compliant law.
Thus, these two cases taken together suggest that the “primacy model” is out of favour with the CJEU, but this does not mean that the trigger model paints an entirely convincing picture either.
Direct Effect, Indirect Effect and Incidental Effect
A - Direct Effect
Who may rely on direct effect of EU law? There are two perceptions as to the rationale for direct effect:
- Direct effect is only possible in situations where the EU provision can be said to create individual rights (ex. Downes and Hilson): this appears to be reflected by some caselaw like Art 30 (Van Gend) and Art 49 (Reyners) which necessarily imply an individual right not to be burdened by unjustified hindrances to cross-border trade, and not to be discriminated against on grounds of nationality respectively
- Direct effect is capable of going beyond the creation of individual rights, so as to be able to protect public interests (in such cases, an applicant appears to be vested not with any subjective personal right, but with an (administrative-type or private-law type) right of standing to invoke the EU provision (in the general interest) before national courts)
o Administrative-law type right of standing: Kraaijeveld (a local business challenged the legality of the decision of a Dutch local authority to approve certain works without conducting an EIA pursuant to the EIA Directive): CJEU held that the useful effect of EU law would be weakened if individuals were prevented from relying on it before national courts.
o Private-law type right of standing in the general interest: Munoz (C alleged that a rival undertaking was selling grapes in the UK in breach of EU regulations, though enforcement of these regulations was reserved exclusively to a public authority in the UK, which refused to exercise its powers in the dispute): CJEU held that the purpose of the regulation was to keep unsatisfactory products off the market for the protection of both consumers and rival undertakings. The full effectiveness thus implies that it must be possible to enforce obligations in the regulations by means of civil proceedings by competitors.
But it’s difficult to distinguish in some cases (ex. in Munoz itself it’s unclear whether the competitor had an individual right to compete under fair economic conditions, or had “standing” to invoke EU law in the general interest). In any case there appears now to be a greater consensus that direct effect is (in principle) capable of attaching to any EU provision not just those creating individual rights (Edwards; Prinssen and Schrauwen).
Direct Effect, Indirect Effect and Incidental Effect
A - Direct Effect
1 - General
Direct effect is not in the Treaties. The Art 267 preliminary reference procedure implies that EU law is capable of being applied by national courts (because otherwise the purpose of the procedure is weakened) but it is still arguable in principle that it is for domestic law to choose how (if at all) to admit rules made at international level into domestic legal proceedings, so that there should be no requirement imposed by EU law pertaining to its treatment by national judges (argument rejected in Van Gend en Loos).
Direct effect = capability of creating legally enforceable rights before national courts.
Direct Effect, Indirect Effect and Incidental Effect
A - Direct Effect
1 - General
Not all EU law is capable of direct effect – there are conditions:
- Pertaining to the character of the rule: sufficiently precise and unconditional (though the CJEU has been assiduous in finding a sufficiently precise core of legal rules that might have appeared too conditional to attract direct effect)
o Example - Reyners v Belgian State: Article 49 TFEU was held to be direct effective in a case concerning a Dutch national holding a Belgian legal qualification being denied admission as a lawyer because of rules restricting the profession to Belgians.
ESSAY POINT: whether a provision is directly effective might depend on the facts of the case and the particular violation involved, and the part of the provision the national law violates (which might be sufficiently precise even though another violation might not…).
o Example – Francovich: a non-transposed Directive offering protection for losses suffered by employees as a result of their employer’s insolvency had direct effect, even though the Directive offered options from which MSs could choose in determining the operative date from which the protection should be available. This did not rob the Directive of direct effect because it was possible to identify a “minimum guarantee” based on the least generous option.
- But there are nevertheless limits: thus in Francovich itself the CJEU went on to find that the transposition of the Directive required a choice about the institutional arrangements governing the payment of compensation, so that no direct effect was possible on this point.
- Pertaining to the type of legal act:
o Treaties, Regulations and Decisions: vertical and horizontal direct effect possible
o Directives: because they require implementation at national level (Art 288 TFEU) and MSs choose the methods of implementation, there is a strong argument that Directives are not unconditional enough for direct effect. But the CJEU still found them capable of direct effect in some circumstances.
Direct Effect, Indirect Effect and Incidental Effect
B. de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’, Ch. 12 in Craig and de Búrca (eds.), The Evolution of EU Law (OUP, 2011);
- Direct effect = the capacity of a norm of EU law to be applied in domestic court proceedings.
- Supremacy = the capacity of that norm to overrule inconsistent norms of national law in domestic court proceedings.
At the time of Van Gend and Costa, the internal primacy of Treaties were a matter of national law (and this is still the case for international law) – pacta sunt servanda was a legal principle, but it merely implied that states could not invoke national law as an excluse for failing in their Treaty obligations.
At the time of signature of the EEC Treaty, only Germany and Italy were dualist; the four others were monist (though only in the Netherlands and Luxembourg was the primacy of international alw an established practice: - Dualist countries (UK, Germany, Italy): international treaties cannot have legal effects in the municipal sphere but require “transplantation” into national law to become operational
o Direct effect: treaty norms are not enforceable as international law, but enforceable as national law after transplantation
o Supremacy: transplantation means that the relationship between a norm of international origin and a purely national norm is determined by national law, and conflicts are resulved through ordinary competition lf law rules (particularly lex posterior derogat priori) - Monist countries (France, Spain, Benelux): international legal norms are, upon their ratification and publication, received within the national legal order while preserving their nature of international law
The major contribution of Van Gend is not deciding that EU law can have direct effect, but that the question of whether specific provisions of the Treaty had direct effect was to be decided centrally by the CJEU and not by national courts, and according to very generous criteria.
Van Gend did not decide the issue (at least explicitly) of primacy because it was not at issue: under Dutch constitutional law, if a Treaty provision is self-executing, then it would prevail over conflicting national law (Art 94 Constitution). It became a problem in Costa v ENEL, reference by a dualist MS.
Costa was more difficult than Van Gend because direct effect can be rationalized as inherent in the interpretative function of the CJEU, but primacy had been accepted in the international plane, whereas the internal primacy of EU law and the duty of national courts to enforce it had never been considered part of international law.
The dualist attitude (ratify then decide whether to adapt domestic law) was perhaps justifiable at a time when signature and ratification were governmental competence (excluding Parliaments) but the EEC Treaty was debated by all national parliaments, so appears logically flawed.
Direct Effect, Indirect Effect and Incidental Effect
Para I – Direct effect
I – Evolution of Direct Effect
At first assumed that direct effects was defined as the creation of rights for individuals that national courts must protect, but this was gradually superceded by “invocabilité” (the capacity of the norm to be invoked by individuals in national courts, which are bound to apply them) because sometimes a Directive doesn’t create rights but the CJEU let individuals enforce them if they have a sufficient interest:
- Procedural obligations (CIA Securities)
- EIA Directive (Aannemersbedrijf) and other environmental law directives (Waddenzee)
Thus, EU law can be used as a:
- sword (source of new rights) EU law has a “substitution effect”
- shield (protection against conflicting national norms) EU law has an “exclusionary effect”
Which of the two applies depends more on the pre-existing state of national law than on any inherent characteristic of the EU norm.
Direct effect boils down to a test of justiciability – is the norm sufficiently operational ot be applied by a court in a given case?
Thus, Pescatore argues that direct effect is “nothing but the ordinary state of the law” and discussions about it just an “infant disesase” soon to be overcome. Indeed, the CJEU sometimes forgets about direct effect and proceeds directly to the question of compatibility of national law with EU law (ex. C-55/07 Michaeler).
Perhaps, then, direct effect “has no explanatory value any more in a mature EU legal order”, so we can just drop it altogether and let national judges apply EU law in the same way as national law.
- S Prechal, ‘Does Direct Effect Still Matter?’ (2000) 37 CML Rev 1047
- S Prechal, ‘Direct Effect Reconsidered, Redefined and Rejected’ in J M Prinssen and A Schrauwen (eds), Direct Effect—Rethinking a Classic of EC Legal Doctrine (Europa Law, 2002) 15, 22: ‘Why should we not accept that national courts should handle Community law provisions in the same way as national law, ie without making this formalistic and obsolete preliminary inquiry into unconditionality and sufficient precision?’
But direct effect is still of continued relevance:
- The existence of direct effect is a matter of interpretation by the CJEU not national courts
- Some categories of EU law seem sufficiently operational but may not be enforced by national courts for other reasons
- Direct effect is an obligation for national courts or another authority (i.e. “all organs of the administration” including decentralized authorities are bound: Costanzo, CJEU), which means that administrative bodies (who don’t have such power under national law) are bound to enforce directly effective EU norms at the expense of national law, and even though they do not have access to the preliminary reference procedure so are liable to apply EU law wrongly.
o But there is little evidence that administrative bodies actually abide by it…
Direct Effect, Indirect Effect and Incidental Effect
2 – Direct effect and sources
a – Treaty
- Question as to which provisions can have HDE – the common market freedoms appear only to involve duties for state authorities, but in Laval and Viking Lines, the CJEU allowed the obligation to respect the free movement rights of other private parties to be invoked against a trade union, even though the legitimate reasons that can justify restrictions to trade are entirely framed in terms of the public interest and therefore leave private parties empty-handed by definition
Direct Effect, Indirect Effect and Incidental Effect
2 – Direct effect and sources
b – Directives
- Directives cannot “of itself” impose obligations on private parties no HDE. But the CJEU’s JP turns narrowly on the words “of itself” because in cases where Directives don’t apply “of itelf” but is ‘merely’ used to exclude the application of a national legal rule, then there is no problem, even where this adversely affects the legal position of private parties (ex. Arcor, CIA Security)
Direct Effect, Indirect Effect and Incidental Effect
2 – Direct effect and sources
c – General principles
- These are hardly “precise”, but certainly “unconditional” in not requiring any implementation… But in Mangold it was held that the general principle of non-discrimination on the ground of age had HDE. Controversial because the general principle was to the detriment of a private party (in the constitutional law of many MSs don’t allow general principles or even (written) fundamental rights to be directly enforced by courts against public parties).
Direct Effect, Indirect Effect and Incidental Effect
3 – Effet utile of direct effect
The effet utile of direct effect must be ensured by effective national procedural and remedial rules.
Direct Effect, Indirect Effect and Incidental Effect
Para II – Supremacy
There is:
- substantive supremacy (obligation to set aside conflicting national laws)
- structural supremacy (duty to set aside constitutional norms defining courts’ jurisdiction and powers in relation to other state authorities)
Direct Effect, Indirect Effect and Incidental Effect
Para III – Reception of the doctrine at national level
“the success of [Union] law in embedding itself so thoroughly in the legal life of the Member States is due to its having been perceived, interpreted and applied by the nationals, the administrations and the courts and tribunals of all the Member States as a uniform body of rules upon which individuals may rely in their national courts” (CJEU, Report of May 1995).
Direct Effect, Indirect Effect and Incidental Effect
The crucial element for the effective application of supremacy and direct effect is the attitude of national courts and authorities… So why do national courts listen?
- The doctrines were developed in the context of preliminary references which are binding but the CJEU’s authority is restricted to interpretation and validity of Treaties, so can argue that primacy/direct effect are not really about interpretation of EU law but matters of national constitutional law
Direct Effect, Indirect Effect and Incidental Effect
But for whatever reason, reception by national entities has been very successful:
- Absence of reaction by political institutions: 50 years of existence and they are still unwritten principles of law… They haven’t been incoprated into the Treaties, nor have there been many attempts at either incorporating them into the national constitution or conversely curbing their scope
- Easy acceptance by courts of direct effect: perhaps not surprising because it wasn’t really a break from the past habits of MS courts to international treaties, but there have been pockets of resistance – ex. Cohn Bendit.
- Difficult acceptance by courts of primacy:
o Original six MSs (to whom Costa v ENEL was a surprise):
♣ Netherlands and Luxembourg already accepted supremacy of international law
♣ Belgiun reacted most promptly and loyally to the CJEU
• Franco-Suisse le Ski, Belgian Cour de cassation, adopting the principle of primacy as formulated in Costa, based on the nature of international law and EU law [NB it says that any international law is supreme over domestic law, not just EU law‼!]
Essay point: though Costa v ENEL tried really hard to distinguish EU law from international law, half the Member States accepted primacy based on the nature of international law in general, so even they didn’t really follow the CJEU’s vision! This, again, undermines constitutional pluralism because it is too binary – some Member States had no problem accepting primacy, for different reasons (CF UK’s reason according to Jeremias)
♣ France: courts were very slow to accept that constitutional provisions (like Article 55) could be used as a conflict rule in real cases
• Cour de cassation first did in Jacques Vabre (1975): “mais attendu que le traite du 25 mars 1957, qui, en vertu de l’article susvise de la constitution [article 55], a une autorite superieure a celle des lois, institue un ordre juridique propre integre a celui des etats membres; qu’en raison de cette specificite, l’ordre juridique qu’il a cree est directement applicable aux ressortissants de ces etats et s’impose a leurs juridictions; que, des lors, c’est a bon droit, et sans exceder ses pouvoirs, que la cour d’appel a decide que l’article 95 du traite devait etre applique en l’espece, a l’exclusion de l’article 265 du code des douanes, bien que ce dernier texte fut posterieur”
• Conseil d’État followed in Nicolo (1989))
♣ Italy and Germany: the duties imposed in Costa went well beyond the mainstream constitutional doctrine allowed, but the courts over time accepted it
o MSs that joined later (with knowledge of Costa v ENEL): supremacy is mere voluntary acceptance as part of the acquis communautaire
♣ Factortame (No 2) per Lord Bridge: supremacy was “certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community”
Direct Effect, Indirect Effect and Incidental Effect
But there are exceptions to the acceptance of ordinary supremacy by Member States:
- Denmark and Sweden: the statute that confers domestic effect on EU law is the only basis of application of EU law, so EU law remains at the mercy of a later conflicting statute (primacy remains a logical problem though avoided in practice)
UK: Parliamentary
Direct Effect, Indirect Effect and Incidental Effect
Acceptance of supremacy over constitutional law is another matter (the CJEU’s vision is of absolute primacy, but MSs have not accepted):
- Italy
o Frontini, 1973: EU law may derogate from ordinary rules of constitutional law, but not from certain fundamental principles or inalientable rights that are “counter-limits” (controlimiti) to the limitation of sovereignty allowed by Article 11 of the Constitution.
o Fragd, 1989: Italian court held that it had jurisdiction to control the consistency of individual rules of EU law with fundamental rights of the Italian constitution, particularly (but not only) in the field of human rights
♣ It has not yet used this power… - Spain – similar to Italy (and Germany) despite its monist tradition
o Tribunal Constitucional, 2004: distinguished between the “primacía” of EU law and “supremacía” of the Spanish constitution (EU law normally trumps conflicting national norms but the Constitution claims supremacy in the sense of being the source of EU primacy, but also of containing core values and principles that EU law cannot override) - France – similar
o DC, 19 novembre 2004, Traité établissant une Constittuion pour l’Europe: the primacy rule in the Constitutional Treaty did not affect the position of the ntional constitution at the apex of the internal legal order
o DC, 27 juillet 2006, Loi transposant la directive sur le droit d’auteur: EU law prevails over national law except where it is in conflict with France’s “identité constitutionnelle”
♣ “Considérant, en premier lieu, que la transposition d’une directive ne saurait aller à l’encontre d’une règle ou d’un principe inhérent à l’identité constitutionnelle de la France, sauf à ce que le constituant y ait consenti” [What does this mean???? Ask Ernest]
o NB the CC appears more “pro-European” than the Ccas and CE which seemed (in earlier judgments) to give precedence fo all norms of French constitutional law, whereas “identité constitutionnelle” appears narrower…
Direct Effect, Indirect Effect and Incidental Effect
If national constitutions are the source of EU supremacy, then absolute supremacy can only be guaranteed by an “auto-limitation” clause
- Article 120 Dutch Constitution prohibits national courts from reviewing the constitutionality of Treaty provsions and decisions of international organizations
- Irish Constitution states (after each Treaty amendment and a referendum) that nothing in that constitution impedes the application of EU law
Direct Effect, Indirect Effect and Incidental Effect
Conclusion
But the consequence of MS courts sourcing supremacy in their constitutions is that the current legal situation is subject to “decentralized change”.
But even the undiluted acceptance of the CJEU’s absolute supremacy cannot guarantee uniform application of EU law, because of national procedural autonomy.
Arguments of primacy/direct effect linking them to the nature of EU law has acquired a degree of circularity: in Costa/Van Gend, the special nature of EU law was used to justify primacy/direct effect, but now that they are accepted everywhere, the direction of argument is reversed and EU law is said to be unique because it has direct effect and primacy.
In conclusion, the principles of direct effect and supremacy as presently formulated “continue to confirm the nature of EU law as that of a branch of intenraitonal law, albeit a branch with some unusual, quasi-fedral, blossoms”: the ECJ’s claim is not unrelated to pacta sunt servanda, and the domestic application of primacy is not incompatible with international
Direct Effect, Indirect Effect and Incidental Effect
S. Prechal, “Does Direct Effect Still Matter?” (2000) 37 CML Rev 1047
Apparently, DE has been so powerful that the Member States preferred to deny expressis verbis DE of framework decisions in the Third Pillar (Art 34 TEU). However, DE is becoming obsolete in the lright of the evolution of the concept itself and the changing context, and it should be reconsidered and possibly abolished.
It has broadened in scope in three respects since Van Gend:
- Traditionally, was thought to govern the activity of national courts but since Costanzo, national administrations must apply it too
- Traditionally, was thought to be only available where an individual has relied on it, but the CJEU made plain that courts are obliged to apply directly effective EU provisions of their own motion (Van Schijndel, Peterbroeck, Kraiijeveld)
o Therefore, DE is not so much concerned with the question of what an individual can do with provisions, but whether national courts can apply them or not
- Traditionally, DE was thought t obe the creation of rights, but now it is more a concept of “invocability” – national judges don’t only apply norms that create rights, but DE is much broader than that
Nevertheless, old conceptions die hard and the CJEU occasionally still employs the language of “creating rights” in order to indicate DE.
But discussions of DE are also influenced by national perceptions of DE:
- in Germany it is often considered that the creation of an individual right is a condition for direct effect – German courts require a Schutznorm in order to invoke DE.
- in Common law systems the focus is not on right, but on remedies – it is not rights that give rise to a remedy, but a cause of action
- French administrative law views DE as a much broader concept in the sense that EU provisions are used in the context of the “contrôle de légalité”, so that in this context, reviewing the compatibility of national legislation with EU law is among the “méchanismes traditionnels de contrôle de légalité” (= “invocabilité d’exclusion).
- in Belgium, a distinction was traditionally made between DE sensu stricto and DE sensu lato (the latter encompasses control of legality without addressing the question of rights)
- in the Netherlands, the perception of DE is objective (without focusing on the creation of rights). Only recently (after CIA Security) has discussion of a sort of Schutznorm emerged – that case decided that the national law was inapplicable, but who is allowed to rely on that inapplicability? In Lemmens, AG Fennelly an the Dutch Government argued that only those persons whose interests are intended to be protected by the Directive may invoke it, but the CJEU didn’t decide the point, and the judgment can be interpreted in many ways…
Introducing an “interest” requirement for “invocability” of EU law would amount to an unnecessary and incomprehensible restriction, adding a new condition for DE. An analysis of the application of EU law in concerete cases reveals that the review of legality is nothing new – the main obscuring factor is that for a long time the CJEU did not explicitly define it as an option for the “invocability” of EU law.
The conditions for DE cannot be separated from the context of the concrete case a contextual approach (testing the conditions in concreto and for the specific purpose of the case) conditions for DE are of very limited value they should be abolished: “what the national court is facing when parties rely on EU law provisions in a case before it, is a problem that may equally occur in relation to national law”.
Therefore, the recent proposal of AG Léger not to examine anymore the conditions of DE when an EU provision is relied on “à des fins de contrôle de la légalité des norms de droit interne” because this type of review is merely based on supremacy (Opinion of 11 January 2000, Linster) is neither surprising nor revolutionary.
we should take this a step further and stop relying on the distinction between “invocabilité d’exclusion” and “invocabilité de substitution” – we should just stop examining the conditions altogether.
Direct Effect, Indirect Effect and Incidental Effect
*M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931;
Provides an analytical framework for the practical consequences of giving individuals rights – what is it that individuals are suing on? On grounds of national law, or obligations under international law?
The recent confusion caused by Marshall and CIA Securities/Unilever stems from two fundamentally opposing understandings of the relationship between EU law and national law, and between supremacy and direct effect:
- Primacy model: primacy is a constitutional fundamental of the EU, permeating all relations between national law and EU law, capable of producing exclusionary effects within the national legal systems independently of DE and its threshold criteria
o Exclusionary effect (supremacy) - setting aside national rules incompatible with EU norms, thus amounting to judicial review of the validity of domestic rules
o Substitutionary effect (DE) – direct and immediate application of EU law so as to create new rights or obligations derived from EU law, which did not already exist at the national level
- Trigger model: supremacy is nothing more than a remedy to be administered by domestic courts in disputes involving EU law, available only when the threshold criteria for DE are satisfied.
o Here DE encompasses not only the creation and enforcement of subjective individual rights, but any stuation where EU norms produce independent effects within the national legal system – DE enjoys a monopoly over rendering EU norms justiciable before the national courts
Direct Effect, Indirect Effect and Incidental Effect
The two models produce different answers in case of “incidental effects” of unimplemented directives in litgation between private parties:
*M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931;
- Trigger model: unimplemented Directives cannot have DE against individuals and are therefore incognizable before national courts and unable, of themselves, to affect the legal rights and obligations of private parties inter se
o Thus, CIA Security and Unilever should be treated as ad hoc exceptions to the “no HDE” rule - Primacy model: in situations of substitution, DE is necessary, but in situations of mere exclusion, the supremacy principle is in itself capable of obliging national courts to set aside inconsistent domestic legislation, and any affect this has on individuals does not amount to DE stricto sensu and therefore is not hampered by its threshold criteria
o Thus CIA Security and Unilever can be explained
This might also have consequences for framework decisions in the Third Pillar which do not have direct effect (Art 34(2) TEU), because the “trigger” model would reason that there is no scope for the application of supremacy in relation to these Decisions, whereas the primacy model would say that they cannot have DE (in substitution stuations) but can produce exclusionary effects.
Direct Effect, Indirect Effect and Incidental Effect
I – Which model is more conceptually alluring?
A – Exclusion vs substitution
*M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931;
The distinction between exclusion and substitution = idea of legal vacuums:
- in substitutionary situations, if a national rule is set aside on the basis of primacy without a suitable EU norm to replace it, this would leave a “gap” in the domestic legal system, so the threshold criteria for DE ensure that the relevant EU norm is apt to fill that gap
- in exclusionary situations, there is no gap – the exclusion of the national norm does not lead to the direct and immediate application of the relevant EU norm, but the direct and immediate application of other provisions of domestic law capable of resolving the dispute in compliance with EU law
Direct Effect, Indirect Effect and Incidental Effect
I – Which model is more conceptually alluring?
A – Exclusion vs substitution
But this distinction has problems:
*M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931;
- Arbitrary: depends on the terms of the EU provision, the wording of the incompatible national law, the factual matrix where the dispute happened to have arisen
o Example – a Directive containing the same right for workers to be consulted by their employer will sometimes manifest itself in exclusionary manners (ex. national legislation exempting small businesses) and sometimes in substitutionary manners (where the MS simply failed to pass any implementing legislation)
♣ NB [MI] essay point: this was before AMS! Article L1111-3 Code du travail is actually worded negatively (“Ne sont pas pris en compte dans le calcul des effectifs de l’entreprise…”) so according to Dougan would produce exclusionary and not substitutionary effects! So had AMS sued the state rather than suing the employer, incidental effect could have applied!
♣ And this isn’t one of the situations where it would be “unworkable” like Dougan says (infra) because excluding the mechanism would lead to the direct and immediate application of other provisiosn (in casu Article 1111-2 Code du travail and the articles on the minimum numbers of employees required for the different types of representative organizations (L2312-1, L2143-3, L2322-1) - Unworkable: sometimes can’t make a simple distinction between exclusion and substitution:
o Example – Van Gend itself might be treated as a prime example of exclusion!
o Example – an EU directive containing the right to market a product vs. national legislation simply prohibiting the marketing of that product… Looks like exclusion, but can you really say that the consequence of this is direct and immediate application of another rule of national law? More “honest” to say that it leads to the direct and immediate application of the Directive! - Formalistic: every exclusion implies some sort of substitution and vice versa
o Example – in Faccini Dori, the direct and immediate application of EU legislation requiring a “cooling off period” leads inevitably to the exclusion of a national rule permitting enforcement of the contract
In any case, one cannot deny that provisions of EU law have in fact reshaped the legal regime applicable to the given factual situation.
Direct Effect, Indirect Effect and Incidental Effect
I – Which model is more conceptually alluring?
B – The irrelevance of the threshold criteria to exclusionary situations
*M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931;
Are the threshold criteria really so alien to exclusionary situations? Exclusionary situations presuppose a conflict of laws, which in turn presupposes the existence of an identifiable EU norm against which we can judge the validity of relevant domestic rules, and this identification in turn presupposes some criteria capable of delimiting its actual scope and content (and thus rendering it justiciable). Are these, if not identical, at least equivalent to the DE threshold criteria?
However, drawing a substitution/exclusion distinction might be pragmatically helpful in determining the degree of precision and unconditionality required.
Direct Effect, Indirect Effect and Incidental Effect
I – Which model is more conceptually alluring?
C – the deeper underpinnings of the primacy and trigger models
*M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931;
Trigger model sees (1) EU and national law as separate legal systems, the identity of each being defined according to its own internal rules and processes, and (2) that the CJEU may insist on a hierarchical relationship. The “linkage” of these two paradoxical claims is DE, which makes EU law cognizable within national jurisdictions.
Primacy model sees there being a unitary legal order embracing EU and national systems, where there is no inherent need for linkages to render EU law cognizable before national courts, because EU law is to be considered directly applicable (≠ effective), i.e. forming part of the domestic legal systems, from the moment of its inception, so that EU law is capable per se of expressing its hierarchical superiority over national law.
Thus some authors explain the origins of the “primacy” model in certain legal traditions (ex. exclusion/substitution distinction = French administrative law (Prechal)) and in such national constitutional contexts where there indisputably exists a unitary legal order with a direct hierarchy between the constitution and subordinate legal instruments, the idea of a freestanding principle of supremacy works naturally, whereas a doctrine of DE rendering certain legal norms at all cognizable to the national judges would seem “superfluous, or inappropriate”.
But this idea of a unitary legal order works difficultly in the EU because not all MSs accept it – the capacity for EU norms to manifest their supremacy in self-executing fashions, rendered cognizable to local judges for exclusionary purposes cannot be regarded as a fait accompli.
Direct Effect, Indirect Effect and Incidental Effect
I – Which model is more conceptually alluring?
C – the deeper underpinnings of the primacy and trigger models
These differences can be seen in several areas of law:
*M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931;
- Fancovich liability: can be activated by non-directly effective Treaty norms that are nevertheless intended to confer rights on individuals
o Primacy model: difficult to accommodate because Francovich is not direct effect (because non-directly effective provisiosn can trigger it) but it’s also not supremacy (because national rules are not being set aside). It’s simply a free-standing system of liability “inherent” in the hierarchical relationship between EU and national law
o Trigger model: Francovich transofrms non-directly effective EU expectations of a particular substantive benefit into a directly effective EU right to reparation against MS, such a transformation effected through the medium of the liability criteria in Brasserie de Pêcheur - DCI:
o Primacy model: DCI is a corollary to supremacy
♣ It explains why DCI is limited by the need to respect legal certainty (= counterbalance to supremacy)
♣ But it doesn’t explain the contra legem exception because the domestic court should simply be able to disapply national legislation consistently with the exclusionary effect
o Trigger model: DCI is not an autonomous linkage between EU and national law, but is merely a substantive obligation imposed by the Treaty on the national judges, which manifests itself within the national legal system thanks only to DE of its underlying legal basis (general principles, Article 4(3) TEU). - DE:
o Primacy model: how to reconcile supremacy and the existence of a doctrine of direct effect at all? Their answer is that DE is necessary in substitution situations, as a tool for identifying which EU norms may produce a particular type of legal effect within the unitary system. But the problem is that the threshold criteria are relevant to exclusion and substitution
Direct Effect, Indirect Effect and Incidental Effect
II – Which model is better supported by caselaw?
*M. Dougan, ‘When worlds collide! Competing Visions of the relationship between direct effect and supremacy’ (2007) 44 CMLRev 931;
Primacy seems undermined by Pfeiffer and Berlusconi, but the trigger model only explains the caselaw incompletely (unless one decides to marginalize CIA Security and Unilever.
The heyday of the primacy model appeared to be when several AGs argued that the CJEU should expressly articulate a distinction between exclusion/substitution (ex. AG Léger in Linster). But it was never fully convincing.
The intellectual structure of the primacy model sees two different legal pathways: direct effect (substitution) or supremacy (exclusion), meaning that there are two balancing exercises that can lead to inconsistent or arbitrary outcomes (like in CIA Securities and Unilever – for DE, the primacy model accepts that for certain categories of dispute, certainty for individuals trumps uniformity and effectiveness of EU law, but it also insists on a very different balance of interests in other categories of distpute, placing a much higher emphasis on the full enforcement of EU law. The interests appear similar in substitution and exclusion cases; why is legal certainty so important in one but not the other?
More recent caselaw appears to undermine the “primacy” model:
- Pfeiffer: AG Colomer suggested that this was merely an example of exclusionary effect, but the Court went on its traditional no HDE line and then offered explanations as to the requiements of DCI
- But then in Niselli (similar facts to Berlusconi), the CJEU, in line with AG Kokott, held that the Italian court would be bound to disapply the more recent and lenient (incompatible) Italian criminal legislation because it is a simple exclusion that would lead to D’s proceedings continuing on the basis of the previous legislation) primacy model!
- But then in Berlusconi…
But the trigger model can’t explain the caselaw either (notably Unilever and CIA Security)…
- But it might be possible to describe them as manifestations of direct effect, without amounting to the prohibited HDE (though no one has yet offered a solution)
- It might be explained by distinguishing between ordinary “regulatory” Directives and special “procedural” Directives, but why should they be treated differently? Also Wells doesn’t seek to interpret CIA Security as drawing that distinction
- A “substantial procedural defect” is a new “trigger” for supremacy (but this is unsatisfactory, and disproportionate to say that the Notification Directive requires/deserves an entirely new linkage between EU and national legal orders)
- Perhaps the most “satisfying” approach is to consider the two cases as belonging to a particular “period” of the CJEU’s caselaw where it was itself unclear how best to rationalize the relationship between supremacy and direct effect, and was prepared to experiment with different approaches, thereby leaving behind certain rulings that don’t sit easily with the trigger approach
Conclusion: no model accurately depicts the CJEU’s caselaw without losing conceptual rigour, but the primacy model should be abandoned – it has conceptual problems and can no longer claim to explain the state of the law (after Pfeiffer and Berlusconi).
Direct Effect, Indirect Effect and Incidental Effect
Mancini, “The Making of a Constitution for Europe” (1989) 26 CML Rev 595
The CJEU has sought to “constitutionalize” the Treaty – to “fashion a constitutional framework for a federal-type structure in Europe”. “Whether this effort was always inspired by a clear and consistent philosophy is arguable, but that is not really important. What really matters are its achievements – and they are patent to all”.
A constitution and an international treaty are different in several regards, including that treaties do not usually enjoy higher-law status with regard to the laws of contracting powers. But the “undisputed existence of a supremacy clause in the Community framework” is a product of “judicial creativeness” in Costa v ENEL.
Despite several “grumblings” by national constitutional courts, many came to realize that “the alternative to the supremacy clause would have been a rapid erosion of the Community; and this was a possibility that nobody really envisaged, not even the most intransigent custodians of national sovereignty”. It was this “or else argument” that “led to a ready reception of the doctrine in Costa v ENEL”.
Direct Effect, Indirect Effect and Incidental Effect
Direct effect:
D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015).
- Justification = effet utile
- Consequence = CJEU makes connections between cases at a much higher level of abstraction, moving more freely between formal sources of law and sectors of EU law – effet utile is always a relevant consideration, so that judgments that rely on it have a potentially limitless scope of application
Direct Effect, Indirect Effect and Incidental Effect
Direct effect and the enforceability of national measures
D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015).
- Early judgments didn’t indicated whether DE entailed some specific legal consequence that the national court had to implement – Simmenthal clarified that the obligation was to disapply conflicting national laws, which directly flows from primacy.
- But the question remains as to whether this obligation is dependent on the provision conferring rights on the individual – the answer must be no because in many situations the individual is free to act as they did because of the absence of regulation (when national rules are disapplied) not because they had a legal right (ex. Ratti).
- Thus, DE gives an individual a right to rely on (ex.) a Directive, and it is irrelevant whether the individual was conferred a subjective right by the Directive
Direct Effect, Indirect Effect and Incidental Effect
DCI:
D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015).
- This enables insufficiently precise and conditional provisions of a Diretive to produce some effects in national law, placing a duty on national courts, where effet utile requires, to change the traditional interpretation of national law so as to cmply with the Directive’s wording and purpose
Direct Effect, Indirect Effect and Incidental Effect
Directives and obligations on private parties:
D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015).
- Arcaro: the CJEU treated the Marshall prohibition as a more general principle which underpinned DE and DCI
- AG Jacobs in Centrosteel argued that Marshall did not require such a general constraint on horizontal effectiveness of Directives, as Directives can reate obligations on idividuals just not “by themselves” (but difficult to reconcile with estoppel argument, and especially “inverse vertical” cases (the state invokes a Directive against an individual), which explains cases like Kolpinghuis Nijmegen)
- But in Marleasing the CJEU broke the link between the limits of DCI and prohibition against allowing Directives to imose obligations on idnviduals – Marshall was no longer presented as relating to the limits of the estoppel argument, but it was applied a contrario permitting other ways for Directives to affect the outcome of cases before national courts
- Pfeiffer focused on DCI, holding that “the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective” and thus requiring:
o All national provisions must be used in the interpretive process
o Scope of application of national law can be restricted by applying them only insofar as compatible with Directive
o National court must do whatever lies within its jurisdiction to ensure compatibility with Driective
This effect is arguably achieved by means of national law, but indistinguishable from HDE - Pupino (contra legem limit, but in order to use it, the national court must consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the EU measure)
- Adeneler (DCI extended into transposition period to refrain as far as possible from interpreting domestic law in a manner that might seriously compromise, after transposition period, attainment of the objective of the Directive)
- Also Impact
Direct Effect, Indirect Effect and Incidental Effect
Francovich Liability:
D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015).
- Faccini Dori made clear that EU law did not possess a perfect system of enforcement.
Direct Effect, Indirect Effect and Incidental Effect
Incidental effect of Directives:
D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015).
- Directives can be used as general criteria for national law’s compatibility with Eu law (regardless of DE’s threshold criteria and whether they conferred rights on individuals)
o CIA Security:
♣ In CIA the CJEU was not concerned by the horizontal dimension of the case – the private individuals became “third parties” because the CJEU was more concerned about the vertical relationship between the state (that breached EU law) and the party whose conduct would be characterized as illegal should the unnotified technical regulation apply to them
♣ But problems:
• Conceptual level: difficult to reconcile with logic of Marshall and Faccini Dori
♣ Practical level: who can invoke? Lemmens, thus, introduced an additional requirement – application has to be liable to create an obstacle to trade
o Unilever:
♣ AG Jacobs argued that in civil proceedings between indivduals arising from a contract, the sanction in CIA cannot apply, because it is justified by the need to ensure the effectiveness of the control mechanism under the Directive
♣ But the CJEU doesn’t engage with these arguments, instead, maintaining that it was precisely because CIA had been horizontal that inapplicability of national provisions could be demanded in this case (while AG Jacobs argued that CIA exceptionally permitted the legal consequence of inapplicability despite the horizontal nature)
o How to reconcile?
♣ Marshall can be reinterpreted to exclude only the invocability of substitution, but allowing the invocability of exclusion
♣ The nature of direct effect is for the protection of individual rights – when a Directive confers no such rights, then we can’t speak of HDE even if the Directive were applied in a horizontal case (primacy makes this possible)
• But this would require retrospective rejection of a lot of the CJEU’s caselaw where it was DE that generated this consequence, also no a priori reason why the requirements of effectiveness should differ between exclusion and substittuion (Arnull)
o Sapod Audic: CJEU holding that severity of the sanction should be regulated under the applicable national law (ex. nullity or unenforceability of the contract) - Directives can be used as grounds of review of private contracts to the extent that their use would not lead to the imposition of a new obligation on an individual (i.e. as grounds of review of national administrative decisions):
o Wells (planning permission granted without EIA):
♣ on a superficial understanding, this was obviously a vertical case, but then the applicant’s aim was not to exclude application but subject authorities directly to the requirements stemming from the Directive (i.e. the Directive is being used as a standard of the legality of a national administrative decision)
♣ the CJEU’s judgment implies that applicability of the Directive to review national administrative decisions depends on their “direct effect”: “an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party”
♣ Thus the Marshall prohibition extends to cases where third parties would be imposed an obligation because of the applicant’s reliance on the Directive against the state – but obligations are contrasted with the “mere adverse repercussions on the rights of third parties” (which are fine)
However, insistence on the Directive’s effectiveness despite the negative consequences for a private party was counterbalanced by the Court’s acceptance of the national courts’ discretion in determining what measures were necessary to ensure that projects were subjected to EIA: “it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended … or alternatively, if the individual so agrees, whether it is possible for the latter to claim
Direct Effect, Indirect Effect and Incidental Effect
Enforceability of Directives through General Principles
D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015).
- This creates situations of “remedial imbalance” (Weatherill) whereby economically focused Treaty provisiosn are to a large extent enforceable against private parties whereas more socially focused Directives are not
o BUT this overlooks the fact that two of the most broadly horizontally effective provisions are Art 141 TFEU (equal pay) and Art 18 TFEU (non-discrimination on ground of nationality)
o AND The CJEU fund a way of improving enforceability of “social” Directives by relying on “general principles”
♣ Mangold: the national court is asked to only disapply national law (like in CIA Securities) but the incompatibility was substantive in this case – and the “right” is conferred by the contract between the parties and the remaining body of national law not the Directive (thus for many commentators the most problematic feature of the case was the “invention” of non-discrimination on the grounds of age as a PGDUE)
♣ Kucukdeveci: invoked the Charter
♣ AMS: confirmed the horizontal applicability of the Charter (within limits)
Direct Effect, Indirect Effect and Incidental Effect
Conclusion
D. Leczykiewicz, ‘Effectiveness of EU Law before National Courts’, ch. 9 in Arnull & Chalmers (eds.), The Oxford Handbook of European Union Law (OUP, 2015).
In conclusion, these doctrines complement each other in (1) achiving the broadest possible enforceability of EU norms, (2) protection of individual rights and (3) incentives for MSs to fulfill their obligations.
But do the doctrines aimed at invocability of EU law by individuals before national courts paint a coherent picture?
- Why doesn’t legal certainty prevent (1) negative consequnences for individuals other than obligations, (2) the very extensive DCI and (3) why can oblgiations be imposed on individuals when it is contained in a PGDUE or Charter right?
- The CJEU doesn’t use arguments of fariness between parties and social justice very often
- The justificatory force of the “estoppel argument” has led some to concluding that problematic judgments like CIA, Unilever, Marleasing, Pfeiffer, Mangold might be explained as “disguised” vertical cases
- “opportunistic behavior” (Dougan) by individuals should be discouraged, but not every employer/trader who relies on national law are trying to exploit the fact of a MS’s breach to their advantage
These doctrines also raise questions as to the limits of judicial power and the role of unrepresentative institutions in transforming the status of legal system provisions.
Direct effect of provisions of the Treaty: both vertical and horizontal direct effect of Treaty provisions is possible (but, N.B., not automatic!).
Case 26/62 Van Gend en Loos;
Facts: whether Article 28 TFEU prohibiting the imposition of customs duties on imports from other Member States can be invoked as a matter of EU law in national courts.
AG Roemer: anyone “familiar with Community law” knows that “in fact it does not just consist of contractual relations between a number of States considered as subjects of the law of nations”.
CJEU:
- Direct effect derives from the nature not text of the Treaty (Weatherill); it is “more than an agreement which merely creates mutual obligations between the contracting states”. EU law “not only imposes obligations on individuals but is also intended to confer on them rights which become part of their legal heritage”. These rights arise “not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals” and the MSs and Institutions. Dutch courts should as a matter of EU law protect such rights.
- In this case, there is a “clear and unconditional prohibition” that is “not a positive but a negative obligation”, which is “not qualified by any reservation on the part of states” – the very nature of the prohibition makes it ideally adapted to produce direct effects in the legal relationship between MSs and their subjects.
- Governments argued that Art 258 and 259 already create a system for exercising supervision of alleged violations, so that enforcement before national courts should be excluded. But this argument is “misconceived” – these mechanisms do not mean that invidiuals cannot plead these obligations before a national court.
- If it were otherwise, there is a “risk that recourse to the procedure under these Arrticles sould be ineffective if it were to occur after the implementation of a ntional decision taken contray to the provisions of the Treaty” – the “vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision [of] the Commission and of Member States”
Thus “vigilance of individuals” and the Commission/Member States is the dual vigilance.
The CJEU drew from the existence of the Article 267 procedure, and from the place of the individual within the texture of the Treaty – persuasive, but a more modest view is possible (Weatherill). Thus, the CJEU “actively distanced EU law from orthodox international treaty law” (Weatherill) – it is “a new legal order of international law” (CJEU). - CF Costa v ENEL: “by contrast with ordinary international treaties”
Commentary on Van Gend
1º
1º The Treaty envisages infringement proceedings by the Commission for when MSs breach EU law (Art 258), but unearthing violations can be difficult and proceedings tend to be slow and sporadic: direct effect means that independently of action taken at EU level, a defaulting MS may also find itself the subject of control exercised by its own courts (principle of dual vigilance).
Thus Van Gend took EU law “out of the hands of politicians and bureaucrats” and “gave it to the people” – it was a democratizing achievement (
F. Mancini and D. Keeling, ‘Democracy and the European Court of Justice’ (1994) 57 MLR 175)
- Many litigants are driven by commercial interests.
- There is an imbalance because the deregulatory teeth of EU law are sharper than the re-regulatory, so that provisions restraining authorities from restricting trade are typically precise enough to be directly effective whereas those regulating consumer, employee and environmental protection have been found not to be
o But this argument shouldn’t be taken too far – many important cases have involved the promotion of social protection (ex. Defrenne v SABENA)
In any case, Mancini and Keeling are right to insist on the practical significance of direct effect in empowering individuals, and in legalizing (i.e. bringing into the legal context) matters that might otherwise be dealt with through politically driven arrangements.
Thus, direct effect is a means to promote the credibility of Treaty commitments, as evidenced by the absence of attempts to set it aside during Treaty revision.
Commentary on Van Gend
2º
2º Even so, Van Gend is narrow in terms of its elaboration of an EU system of rights:
1) The criteria imposed (clear, unconditional, negatively phrased, require no legislative intervention)
2) Narrow in its understanding of a “right”: there are two possible conceptions –
a. Narrow – a right imposes on a Member State a duty not to violate certain interests (a sort of immunity)
b. Broad – a right calls on all parties to respect, protect and make good the interests that lie at the heart of the right, can be asserted against anybody, and calls for full redress of the interest infringed
Van Gend suggests that the narrow version is adopted because (1) it requires provisions to be negatively phrased (rights can only be used to call MSs to refrain from doing things not take positive action to protect individuals) and (2) unconditional suggests that a right cannot be used to call the court to weigh individual entitlements against other public interests recognized by EU law
This highlights a tension in the Van Gend judgment between (1) protecting individual rights and (2) a countervailing reserve about the duties imposed on other parties. The CJEU’s caselaw marks a push and pull between the two elements.
Facts
Case 43/75 Defrenne v. Sabena [1976] ECR 455;
Facts: under Belgian law female air stewards were required to retire at age 40 whereas male were not, generating a lower pension rate. Defrenne claimed that this violated Article 157(1) TFEU (“Member State shall ensure and maintain the principle that men and women should receive equal pay for work of equal value”). It was argued that the provision lacked direct effect because (1) it only sets out general principles and (2) it is programmatic in nature, requiring further implementation.
I – On direct effect of Art 157
Case 43/75 Defrenne v. Sabena [1976] ECR 455;
CJEU: a distinction must be drawn within Article 157 TFEU between:
- Direct and overt discrimination, which may be identified solely with the aid of the criteria in the Article
- Indirect and disguised discrimination, which can only be identified by reference to more explicit implementing provisions
Direct discrimination in the first category must include in particular those that have their origin in legislative provisions or in collective labour agreements, and which may be detected on the basis of a purely legal analysis of the situation. This is even more in cases where men and women receive unequal pay for equal work carried out in the same establishment [22] – in such situations the court is in a position to establish all the facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same task.
In such situations Art 157 is directly effective.
II – On not being bothered by the horizontal nature of the proceedings
Case 43/75 Defrenne v. Sabena [1976] ECR 455;
CJEU:
- Article 157 only refers expressly to MSs this does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties. The effectiveness of Art 157 cannot be affected by failure of MSs to discharge the duty and the absence of challenge by the institutions.
- Article 157 is a “principle” and therefore lacks direct effect the term “principle” is used in the Treaty to denote its fundamental nature, so that Uif this concept were to be attenuated to the point o reducing it to the level fo a vague declaration, the very foundations of the Community and the coherence of its external relations would be indirectly affected.
- Applying the principle of equal pay by national courts would amount to modifying independent agreements concluded privately since Art 157 is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals. [39]
III – On the absence of retroactivity
Case 43/75 Defrenne v. Sabena [1976] ECR 455;
CJEU: because of the large number of people concerned who could not have foreseen the outcome but which might seriously affect the financial situation, it is appropriate to exceptionally take into account the fact that, over a prolonged period, the parties concerned have been led to continue with practices which were contrary to Article 157. Legal certainty make it impossible in principle to reopen questions as regards the past.
Therefore, the direct effect of Article 157 cannot be relied on to support claims concerning pay periods prior to the date of judgment.
