EU Law and National Courts Flashcards
(36 cards)
Direct Effect
An EU measure has direct effect when it confers immediate rights on individuals which national courts must then enforce.
(EU measure= EU treaty, secondary legislation, other binding act of EU)
Direct effect was first established by
Van Gend en Loos
Van Gend en Loos established
DE of EU Law
That the rights in treaty articles gave rights to individuals that national courts had to protect
Reasoning of Van Gend en Loos
The EEC Treaty was more than just an agreement between the MS- it created ‘a new legal order’ of international law, for the benefit of which MS had limited their sovereign rights.
Subjects of new legal order not only MS but also nationals.
Imposed obligations on individuals but also granted them rights.
Two requirements for a provision of a treaty to have DE
Van Gend en Loos:
1) must be clear and precise
2) must be unconditional (MS does not have to implement it)
Treaty articles can have horizontal DE and vertical DE
Horizontal= against individuals (Defrenne no 2) Vertical= against state (VGL)
Do treaty articles have DE only when they impose a negative obligation?
No, also when they impose a positive obligation.
Can regulations have DE?
Regulations have direct applicability (automatically part of MS legal system, does not need to be implemented).
Has DE if satisfy VGL criteria, both horizontally and vertically.
Can decisions have DE?
Yes, if they satisfy the VGL criteria (Franz Grad).
However, a decision can only be relied upon against the party to whom it was addressed.
Difficulties with directives having DE?
They do not satisfy the VGL criteria as their implementation is left to MSs (therefore they are not unconditional).
Can recommendations and opinions have DE?
No because they are not binding.
Van Duyn
Established that a directive could have DE
Response of French and German courts to Van Duyn
They rejected it, accused CJ of overstepping jurisdiction, refused to directives DE.
Ratti rationale
CJ adopted new rationale for giving directives DE- that a MS cannot rely on its own failure to perform the obligations that a directive entails.
Conditions for directives to have DE
- The implementation date must have passed
- If deadline passed, directive will be capable of having DE if:
a) it has not been implemented at all (Ratti) or
b) has been implemented partially or incorrectly (VNO V Inspectuer)
c) has been correctly implemented, but incorrectly applied by national authorities, such that it fails to achieve the purpose it was supposed to achieve (M&S v Commissioner) - The action must be against the State or an emanation of the State
Foster v British Gas
Does British Gas count as the State?
The ECJ provided 2 tests (the tripartite and bipartite test) to determine whether a body is the emanation of the State.
Farrell v Motor Insurers’
Clarified the test to determine if a body is the State.
1) Entities which are legal persons governed by public law that are part of the State in the broad sense.
2) Entities which are subject to the authority or control of a public body.
3) Entities which have been required, by such a public body, to perform a task in the public interest and have been given, for that purpose, special powers.
In some circumstances directives can have DE on a private party by triangulation.
Wells- a woman wanted a quarry near her home suspended, so enforced a Directive- the consequences of which impacted the quarry owners (a third party to the proceedings).
Criminal Proceedings Against Berlusconi
A directive cannot be given direct effect in order to render someone criminally liable where that person would not otherwise have been.
Also cannot have horizontal DE against an individual
Marshall Principle
Directives cannot be given DE against a private party (horizontal DE).
Incidental horizontal effect
First established in CIA Security.
It is where the state fails to comply with an obligation under a directive to notify the Commission of national regulatory measures, and this failure is relied upon in a legal action against a private party to render those measures inapplicable.
eg. the States failure to carry out their obligation under the Directive renders the regulatory measures inapplicable and therefore unenforceable in national courts against individuals as a result.
The Mangold Principle
Permits a directive to be given DE against a private party where that directive is giving expression to the general principle of EU law prohibiting discrimination in employment, at least in relation to age.
Rationale of Mangold Principle
That the obligation being given horizontal effect was not the directive but the general principle of EU law which the directive was giving expression to.
State Liability
Enables individuals to recover compensation from a MS where they suffered loss as a result of the failure of the MS to comply with its obligations under EU law.
