EU Law, The National Legal System, Supremacy and Direct Effect Flashcards
*Case 6/64 Costa v. ENEL ECLI EU:C:1964:66 (established supremacy)
o Facts
o Mr Costa was an Italian citizen who had owned shares in an electricity company and opposed the nationalisation of the electricity sector in Italy. He refused to pay his electricity bill. He was sued for non-payment by the newly created state electricity company, ENEL
o He argued that nationalisation of the electricity industry violated the Treaty of Rome and the Italian constitution.
o The case was referred to Italian Constitutional Court and then to the European Court of Justice
o The court rules as follows:
o National law cannot take precedence over Community law
Case 11/70 Internationale Handelsgesellschaft v. Einfuhr und Vorratstelle fur Futtermittel und Getreide ECLI:EU:C:1970:114 (on the scope of supremacy)
o Facts
o An import-export obtained licence with respect to food
o According to Article 12(1) of Regulation No 120/67 the issue of the licence was conditional on the lodging of a deposit
o Summary
o The validity of measures adopted by the institutions of the Community can only be judged in the light of Community law…The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of its constitutional structure
Case 106/77 Amministrazione delle Finanze v Simmenthal ECLI:EU:C:1978:49 (NB paras 14-27) (on the temporal scope: supremacy applies to laws pre-dating and post-dating the EU law in question (NB paras 21-24).
o The case established the logic of supremacy to claim that EU law must prevail over constitutional law to protect the unity and efficacy of EC law.
o Facts
o Simmenthal having its registered office in Monza, imported from France via Mondane a consignment of beef for human consumption. A fee was charged for the veterinary and public health inspection of the imported beef
o Simmenthal was of the opinion that the veterinary and public health inspections of the beef when it crossed the frontier and the fees charged for such inspections were obstacles to the free movement of goods and as such forbidden under Community law
o Simmenthal brought an action against the inspection
o Held
o The Court of Justice held in the operative part of that judgment that veterinary and public health inspections at the frontier, whether carried out systematically or not, on the occasion of the importation of animals or meat intended for human consumption constitute measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty
o [27] ‘A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, of necessary refusing its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means.’
o The attribute of direct applicability, referred to in this case is linked to the doctrine of supremacy. Article 288 TFEU declares Regulations to be directly applicable in the national legal order. This means that they are automatically law in all the Member States to interfere with the direct application of the Regulation in the national legal order. Only exceptionally will a Regulation require implementation at national level.
o In order to maintain integrity and uniformity in the application of the legal order, Member States are held to have lost the power to act independently in particular areas. Article 2(1) TFEU.
o Article 3(1) lists areas in which the Union has exclusive competence: customs union, the establishing of the competition rules necessary for the functioning of the internal market, monetary policy for the Member States whose currency is the euro…The union also has exclusive competence pursuant to Article 3(2) TFEU for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary for the Union to exercise its internal competence
o Substance of case
o Direct applicability of a provision of Community law in the event of incompatibility with a subsequent legislative provision of a MS must be fully and uniformly applied in all Member States from the date of their entry into force and for so long as they continue in force
o ‘A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing if its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means.’
Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd and others ECLI:EU:C:1990:257
o The appellants in the main proceedings, including Factortame Ltd are a number of companies incorporated under the laws of the United Kingdom most of who are Spanish nationals.
o Those companies manage fishing vessels registered as British under the Merchant Shipping Act 1894.
o Held
o ‘Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule national law must set aside that rule’
o Van Gen en Loos v Nederlandse Administratie
o Van Gen en Loos had imported ureformaldehyde from Germany into the Netherlands. It had been charged a customs duty. This violated the principle of the free movement of goods between Member States – specifically what is now known as Article 30 TFEU referred to as Article 12 in the case. Van Gend en Loos claimed reimbursement of the sum before the Dutch courts. The Dutch court made a preliminary reference to the European Court under what is now known as Article 267 TFEU in order to discover whether Article 12 now (30) could assist a private litigant before a national court
o The effectiveness of Article 258 TFEU
o This case concerns direct effect, in which the Court identifies as flowing from the objectives of the Treaty, if not from its explicit terms
o The procedure under Article 258 occupies two phases – the administrative and the judicial. Most cases are resolved to mutual satisfaction as a result of dialogue within (or even before) the first phase. Some, a minority are brought, before the Court. The commission enjoys discretion in choosing how to deal with a suspected infringement of EU law, and its hand cannot be forced.
o Report from the Commission on Monitoring the Application of Community Law (2005), overall position, 23rd Annual Report – p 86 Wetherill
o ‘The primary objective of infringement proceedings is to encourage Member States to comply voluntarily with Community law as quickly as possible. Furthermore, the Commission has aimed to boost cooperation with the Member States by means of contemporary or alternative methods, to resolve problems.’
o A State in violation of EU law may be challenged before its own national courts. The principles of direct effect, supremacy and the Article 267 pre-liminary reference procedure all come into play.
o A complainant unable to persuade the Commission to investigate the matter may be able to resort to the second limb of ‘dual vigilance’, national level control. Once the Commission investigates the matter under Article 258, the individual may in addition choose to bring proceedings at national level in so far as that may offer legal protection unavailable at EU level: this will be the case in particular if the individual seeks compensation for loss suffered as a result of State violation of EU law
o Note that the dual-vigilance limb is defective in the sense that Art 258 proceedings may not be brought against private parties.
o Van Duyn v Home Office
o Van Duyn, a Dutch woman had been refused leave to enter the UK where she wished to take up employment with the Church of Scientology. Her action was based on Article 48 of the ECC Treaty today after amendment Article 48 TFEU
o The UK sought to exclude Van Duyn on the basis of the exceptions claiming the Church of Scientology to be socially undesirable. The High Court made a preliminary reference to the Court of Justice to seek clarification of the issues involved. The first two questions involved the enforceability of what were then the EC law provisions before national courts – direct effect
o [4] The first question asked…the Court is asked to consider whether Article 48 of the EEC Treaty is directly applicable so as to confer on individuals rights enforceable by them in the Courts of a Member State
o The free movement of workers was used by the court to reason on the issue –
o [8] hence, the ‘first question was answered in the affirmative’
o The second question
o [9] ‘The second question asks the Court to say whether Council Directive no 64/221 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health is directly applicable so as to confer on individuals rights enforceable by them in the courts of a Member State.’
o Accordingly, the second question, the Directive confers on individuals rights which are enforceable by them in the courts of a Member State and which the national courts must protect
o Defrenne v SABENA
o The case was a preliminary reference from a Brussels court. It concerned Article 119 EEC which contained the principle of equal pay for equal work. The current version of this provision is Article 157 TFEU.
o Defrenne an airhostess, was seeking compensation from SABENA, her employer for low pay she had received in comparison to male workers. But could she rely on the Treaty provision before a national court?
o [40] ‘The reply to the first question must therefore be that the principle of equal pay contained in Article 119 may be relied upon before the national courts and that these courts have a duty to ensure the protection of the rights which this provision vests in individuals, in particular as regards those types of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which men and women receive unequal pay for equal work which is carried out in the same establishment or service whether private or public.’
o Note
o In Van Duyn v Home Office the Court found the provisions directly effective despite the existence of derogations available to Member States; in Defrenne v SABENA, direct effect was upheld despite the very broad, underdeveloped terms of the provision in question.
o In Defrenne v SABENA Another two aspects to consider are: The Treaty provision was held directly effective against a private party, the employer. Treaty provisions, then, are capable of binding not only the State, as in Van Gend en Loos and Van Duyn (vertical effect) but also private parties (horizontal effect). The second aspect to consider is that the Court decided to restrict the implications of its ruling
o [75] ‘…the direct effect of Article 119 cannot be relied on in order to support claims concerning pay periods prior to the date of this judgment, except as regards those workers who have already brought legal proceedings or made an equivalent claim.’
o Note: EU law establishes substantive rights. It also establishes the constitutional principles which allow a private individual to rely on those rights at national level to defeat conflicting national law – direct effect, plus supremacy, plus the preliminary reference under Article 267 TFEU. However, EU law also exerts an impact on the national law of procedure and remedies.
Notes
Notes
o Direct effect = The principle that Union law may if appropriately framed, confer rights on individuals which the courts of Member States of the European Union are bound to recognise and enforce
o Directly applicable = A concept of European Union Law that relates specifically to regulations as set out in Article 288. The concept refers to the fact that regulations require no implementing legislation within individual Member States – they take effect as soon as they are published by the European Commission.
o Remember the criteria for direct effect (clear, precise and unconditional)
o A directive in contrast to a regulation would not be directly effective. Regulations are directly applicable and if they meet the Van Gend en Loos test for direct effect they are directly effective too.
o The Court has developed the case law in the horizontal direct effect field. Horizontal Direct effect of Directives does not apply, nevertheless it has been extended the incidental effect of Directives on private parties in national proceedings.
o To take from this chapter…Directives are capable of direct effect but only against the State. The unimplemented Directive is barred from application against private parties, although it may exert an incidental effect on private parties.
P Craig
o The main acts of the EU legal order are set out in Article 288 TFEU. All binding forms of EU law are capable of direct effect, and while other types of non-binding law are not said to have direct effect, they are influential in other ways and may have what has become known as indirect effect through the principle of harmonious interpretation
o Direct effect: Time limits
- The general principle is that the direct effect of a directive operates from the deadline specified for implementation of the directive
- The ECJ has made it clear that directives may have an impact even before their implementation period has passed. Inter-Environment Wallonie held that although states are not obliged to implement a directive before the period for its transposition has expired, states must refrain from adopting any measures liable to compromise the result prescribed by the directive.
- The CJE expanded direct effect in Marshall – held that the direct effect of a directive could be pleaded only against the state, but not against an individual
o Key devices or strategies of directives: Make sure that you understand each: These strategies are to deny horizontal direct effect of directives
- The adoption of a broad definition of the state for the purposes of vertical direct effect, thereby blurring the clarity of the line between horizontal and vertical effect
- The principle of harmonious interpretation or indirect effect
- The doctrine of ‘incidental horizontal effects’
- The interactions between general principles and directives
- The interaction between certain regulations and directives
- The doctrine of state liability for breach of EU law
Case 41/74 Van Duyn v Home Office
o The Court held that a directive might be relied on by an individual before a national court
o So it was held that in principle, directives could have direct effect for three reasons:
- The first reason given by the Court is functional: directives are binding and will be more effectively enforced if individuals can rely on them
- The second reason is textual: What is today known as Article 267 TFEU allows national courts to refer questions concerning any EU measure to the Court of Justice, including directives, and this implies that such acts can be invoked by individuals before national courts. The Court of Justice has used this reasoning in Van Gen in relation to treaty provisions
- The third point is articulated in the case of Ratti using the estoppel argument: Member States were precluded by their failure to implement a directive properly from refusing to recognise its binding effect in cases where it was pleaded against them. Thus, the argument is that the Member State should have implemented the Directive. If it had done so the individual would have been able to rely on the national implementing law. The Member State had committed a wrong by failing to implement the directive, and could not rely that wrong doing so as to deny the binding effect of the directive itself after the date for implementation. Where necessary any national conflicting law should be disapplied.
Case 148/78 Pubblico Ministero v Tullio Ratti C:1979:110 (significance of the implementation period and estoppel argument)
o The Court of Justice explained how and why directives can produced direct effect
o Facts
o Directive 73/173 required Member States to introduce into their domestic legal orders rules governing the packaging and labelling of solvents. This had to be done by December 1974. Italy had failed to implement the Directive and maintained in force a different national regime.
o 1. Ratti produced his solvents in accordance with the Directive, not the Italian law. In 1978 he found himself the subject of criminal proceedings for non-compliance with the Italian law. Could he rely on the Directive which Italy had left unimplemented?
ϖ [22] ‘a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely…on its own failure to perform the obligations which the directive entails.’
ϖ So this means that the person may rely on the directive
ϖ [24] ‘Therefore, the answer to the first question must be that after the expiration of the period fixed for the implementation of a directive a Member State may not apply its internal law…which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive.’
o 2. Directive 77/728 applied in a similar regime to varnishes. However, the deadline for implementation was November 1979. Yet in 1978 his varnishes were already being made according to the Directive, not Italian law. In the criminal prosecution for breach of Italian law he sought to rely on this Directive too. He argued that he had a legitimate expectation that compliance with the Directive prior to its deadline for implementation would be permissible:
ϖ [45] ‘If one Member State has incorporated the provisions of a directive into its internal legal order before the end of the period prescribed therein, that fact cannot produce any effect with regard to other Member States’
ϖ [46] ‘In conclusion, since a directive by its nature imposes obligations only on Member States, it is not possible for an individual to plead the principle of ‘legitimate expectation’ before the expiry of the period prescribed for its implementation.’
ϖ P 114 of book – ‘In normal circumstances, however, it is the expiry of the prescribed deadline which converts an unimplemented and (sufficiently unconditional) Directive into a provision on which an individual may rely before a national court.
Case C-129/96 Inter-Environnement Wallonie ASBL v Region Wallone ECLI:EU:C:1997:628
o The Member States must refrain from adopting measures liable seriously to compromise the result prescribed by a Directive during the period prescribed for its transposition
o Inter-Environment Wallonie is a non-profit seeking environment association. It seeks the annulment of the Order of the Walloon Regional Executive on toxic or hazardous waste (the Order).
o The Court answered the questions referred to it by the Belgian Counsel as follows:
- 1. A substance is not excluded from the definition of waste, merely because it directly or indirectly forms an integral part of an industrial production process
- 2. The second paragraph of Article 5 and the third paragraph of Article 189 of the EEC Treaty, and Directive91/156, require the Member States to which that directive is addressed to refrain, during the period laid down therein for its implementation, from adopting measures liable seriously to compromise the result prescribed.
*Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority. (Teaching) (Vertical/Horizontal distinction)
o Facts
o Ms Marshall was dismissed by her employers, the Health Authority, when she reached the age of 62. A man would not have been dismissed at that age. This was discrimination on the grounds of sex. But was there a remedy in law? Not under the UK’s Sex Discrimination Act 1975, because of a provision excluding discrimination arising out of treatment in relation to retirement. Directive 76/207, requiring equal treatment between the sexes, did appear to envisage a legal remedy for such discrimination, but that Directive had not been implemented in the UK, even though the deadline was past.
o Could Ms Marshall base a claim on the unimplemented Directive before an English court? – the Court of Justice was asked this question in a preliminary reference by the CA
o The Court held that in Ms Marshall’s situation was an instance of Discrimination on grounds of sex and she could rely on the Directive
o Notes
♣ Ms Marshall was able to rely on the Directive because she worked for the State. However, if she had been employed by a private firm she would have been unable to rely on the Direct effect of the Directive.
♣ For Directives there are extra requirements which apply: First that the implementation date has passed; and second, that the State is the party against which enforcement is claimed. Directives may be vertically directly effective, but not horizontally directly effective
♣ The Court so far has rejected horizontal Direct effect of Directives
♣ Note that in Ratti and in Marshall the Court appears to switch its instance away from the idea of ‘useful effect’ to a type of ‘estoppel’ as the narrower legal rationale for holding Directives capable of direct effect.
*Case C-91/92 Paola Faccini Dori v. Recreb Srl (confirms that there is no horizontal direct effect of directives)
o Facts
o Ms Dori had concluded a contract to buy an English language correspondence course. By virtue of Directive 85/577, which harmonizes laws governing the protection of consumers in respect of contracts negotiated away from business premises (today replaced by Directive 2011/83 on Consumer Rights, she ought to have been entitled to a ‘cooling-off’ period of at least seven days within which she could exercise a right to withdraw from the contract.
o However, she found herself unable to exercise that right under Italian law because Italy had not implemented the Directive.
o She therefore sought to rely on the Directive to defeat the claim brought against her by the private party which she had contracted. The ruling in Marshall appeared to preclude reliance on the Directive. The Court maintained that Directives are incapable of horizontal Direct effect.
o [23] ‘It would be unacceptable if a State, when required by the Community legislature to adopt certain rules intended to govern the State’s relations – or those of State entities – with individuals and to confer certain rights on individuals, were able to rely on its own failure to discharge its obligations so as to deprive individuals of the benefits of those rights. Thus the Court has recognised that certain provisions of directives on conclusion of public works contracts and of directives on harmonisation of turnover taxes may be relied on against the State…’
o Key passage
o ‘…the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures whether general or particular, is binding on all the authorities of Member States, including for matters within their jurisdictions, the court…when applying national law, whether adopted before or after the directive, the national court that has to interpret the law must do so as far as possible in light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty’.
Case C-144/04 Mangold (general principle and direct effect)
o Facts
o Mangold was a 56-year-old German man employed on a fixed term contract in a permanent full-time job. The German government introduced the Employment Promotion Act 1996 which allowed fixed term contracts for a two-year maximum, and otherwise were unlawful unless they could be objectively justified. But this protections was removed to ‘promote employment’ if the employee was over 60. Further amendments then changed the age to 52. Mr Mangold claimed that the lack of protection, over age 52, was unjustified age discrimination.
o Judgment
o The ECJ held in its judgment the German law contravened the ‘Employment Equality Framework Directive, even though it did not have to be implemented until the end of 2006. It said that, in general terms, legislation that lets employers treat people differently because of their age ‘offends the principle’ in international law of eliminating discrimination on the basis of age. The Court ruled that national courts must set aside any provision of national law which conflicts with the directive even before the period for implementation has expired.
o Significance
o Equal treatment is a general principle of EU law, hence the case is significant for:
- 1. It means that a claim for equal treatment is available for private citizens on a horizontal direct effect basis. It is unnecessary to wait for a Directive to have been implemented before making a claim to have caused discrimination
- 2. It means that Member State and EU legislation, such as Directives, may be challenged on the ground that they fail to comply with the general principle of equal treatment
- 3. Because the Court did not limit its remarks to the particular grounds of discrimination presently found in the equal treatment Directives (on sex, race, and disability, belief, sexual orientation and age) it follows that claims against unjustified discrimination on the basis of other characteristics may be possible such as (education, property or military service). It would be likely to reflect the jurisprudence from the European Convention on Human Rights, where Article 14 which lists similar grounds to those already in the EU Directives but also adds ‘or other status’.
- The court said that some general principles of direct effect create vertical and horizontal –
- From this case we know that non-discrimination is one of the basic principles
- When we are being tested in general principles there is always discrimination
- So the court said that there are certain general principles of EU law which could give horizontal direct effect.
- You could say what are the general principles of direct effect and frase it in a negative way to close the argument – so where is this going?
Case C-555/07 Kukucdeveci EU:C:2010:365 (confirms Mangold)
o Facts
o Leading EU labour law case, which held that there is a general principle of law in all European Union Member States, against discrimination, and in favour of equal treatment
o Ms Kukucdeveci argued that the German service related statutory minimum notice period, because it disregarded employment before the age of 25, was unjustifiably discriminatory against young people. She started work at age 18 and was dismissed in 2006 after 10 years service.
o The government argued the aim was to give employers more flexibility by allowing them dismiss young workers, who can be expected to be more personally and occupationally mobile.
o The questions were (1)(a) is an age qualification for provisions on reasonable notice discriminatory? (b) are they justified? (2) if unjustifiable, can private citizens have a direct right of action against employers?
o Judgment
o The European Court of Justice held that the legislation was contrary to the Employment Equality Framework Directive 2000/78/EC, but also following Mangold, a general principle of equality which fills all of EU law, to which the Directive gave expression. This is more so because the Charter of Fundamental Rights article 21(1) says the same and that has the same legal value as the treaties under TEU Art 6(1).
o It was held that there was not sufficient objective justification for the measure, because although the German government’s aim of wishing to bolster (support) youth employment was legitimate, its measure was disproportionate.
o [35] ‘…the legislature’s assessment that young workers generally react more easily and more rapidly to the loss of their jobs and greater flexibility can be demanded of them. A shorter notice period for younger workers also facilitates their recruitment by increasing the flexibility of personnel management.’
o [44]-[56] the ECJ further held that national courts have a duty to disapply any provision of national legislation contrary to the principle of equal treatment. They should not feel compelled (obliged) to make a reference to the ECJ first.
Mitigating the lack of horizontal direct effect
o The principle of indirect effect under certain conditions allows individuals to invoke the EU law itself before national courts
o The doctrine of indirect effect is in practical terms the most important qualification to the principle that directives do not have horizontal direct effect. It is however problematic for private defendants in terms of legal certainty, given that concerns about legal certainty are said to underpin the rule that directives should not have horizontal direct effect
o A company seeking to determine whether it should follow national law or a non-implemented directive has a difficult task. If directives had horizontal direct effect, the company would simply compare relevant national law with the directive, and in the event of inconsistencies it would determine whether the provisions of the directive were sufficiently precise and unconditional. Assuming that they were the company would follow the directive, which under the principle of primacy would take priority over conflicting domestic law.
o Given the lack of horizontal direct effect, the company must not only identify any possible inconsistencies between national law and the directive. It must examine all provisions of the directive, even those which are not sufficiently precise or certain for direct effect. It must then make a rough guess as to whether a national court would feel able to read national law to be in conformity with the directive. It would be very difficult to predict the outcome of any litigation, since the duty of harmonious interpretation demands that national courts consider all national law in deciding whether compatibility with the provisions of the directive can be attained.
