week 2: Direct Effect

Question 1

What is the concept of “direct effect” in EU law?

Answer 1

Direct effect means that EU law can be invoked directly before national courts and administrative bodies by individuals.

Doctrine of Direct effect: under certain circumstances EU law directly enforceable in EU MS
National courts and administrative bodies can (and must) execute EU law directly

Question 2

Which landmark judgment introduced the doctrine of direct effect?

Answer 2

The landmark judgment Van Gend en Loos (1963) introduced the doctrine of direct effect.

From CJEU Van Gend en Loos (1963) decision
Treaty provision has Direct effect if provision if:
1. Sufficiently clear
2. Unconditional

If provision has direct effect it can be directly invoked before and applied by national court or administrative body

Question 3

Which type of EU law always has direct effect without needing national implementation?

Answer 3

EU Regulations.

Question 4

Can individuals directly invoke provisions of EU treaties (primary law)?

Answer 4

Yes, provided that the treaty provision is sufficiently clear and unconditional.

Question 5

What does it mean for an EU law provision to be “unconditional”?

Answer 5

It means the provision is not subject to additional conditions or further implementation by Member States.

To test:
- Can state choose whether to apply rule?
'’shall be prohibited’’
- Clear unconditional provision
- State has no discretion whether to apply

Question 6

What does it mean for an EU law provision to be “sufficiently clear”?

Answer 6

National judge must be able to apply provision just by looking at it

Rule of thumb elements - does provision clarify:
◊ Who gets
◊ what
◊ from whom?

Question 7

Explain the difference between vertical and horizontal direct effect.

Answer 7

Vertical direct effect allows individuals to invoke EU law against Member States
- can be invoked only against a gov (= Vertical)

Horizontal direct effect allows individuals to invoke EU law against other private individuals or companies
- Cannot be invoked against individual/company (= Horizontal)

Question 8

Different types of EU secondary law?

Answer 8

1. EU regulations:
   • Rules of general application
     □ bind everybody

• Apply directly in EU MS
  □ Do not have to be transposed into national law
• Can be thought of as ‘‘EU laws’’

2. EU Directives:

    - Usually only bind MS
   
    -  Tell EU MS which result they must achieve within their national legal systems
            □ Leave how they achieve it to them

• Can be thought of as ‘‘EU framework laws’’

3. EU Decisions:

    -  Apply directly in EU MS

• But bind only addressee

The 3 types of EU secondary law found in Article 288 TFEU:
◊* To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.

					◊ A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
					
					◊ A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

◊ A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.*

Question 9

Do EU Directives typically have direct effect?

Answer 9

General rule: no direct effect of EU Directives

	○ EU Directives binding for EU MS
	○ After adoption by EU legislators they have to be transposed into national law (Usually within 2 years)

• National courts and administrative authorities apply national law (not EU Directive)

Exception:
Under certain exceptional conditions a provision of EU Directive has direct effect

		1. EU MS has failed to transpose EU Directive in time
		2. It grants a right to individuals that is sufficiently clear and unconditional
		->  If these conditions met individual can invoke provision of EU Directives   directly before national court or administrative body  - They have to apply it directly

Question 10

Under what conditions can an EU Directive provision have direct effect?

Answer 10

If the directive provision grants clear, unconditional rights to individuals and the Member State has failed to implement the directive in time

Question 11

Why can’t directives have horizontal direct effect?

Answer 11

Because directives are addressed to Member States and not to individuals, they cannot impose direct obligations on individuals or companies.

Question 12

What is the principle of “indirect effect” (consistent interpretation)?

Answer 12

national courts and administrative bodies have to apply national law in way consistent w EU law

Example:
MS failed to implement EU Directive but EU Directive has no direct effect
- > national courts and administrative bodies need to interpret and apply the national law in a way that is as much as possible consistent w the EU Directive

Question 13

Can a national court apply an unimplemented directive directly to impose obligations on individuals?

Answer 13

No, directives cannot impose direct obligations on individuals. National courts may, however, rely on indirect effect or other doctrines to achieve compliance with EU law.

Question 14

How did the Van Duyn (1974) case influence the direct effect of directives?

Answer 14

Van Duyn established the principle that directives could have direct effect against the Member State if provisions were sufficiently clear, unconditional, and not properly transposed.

Question 15

Case: Van Duyn (1974)

Answer 15

Facts:

		- Yvonne van Duyn was Dutch citizen and member of Scientology
	
			□ She wanted to move to UK (at time EU MS) and wanted to work for church of Scientology as secretary in UK
			□ UK considers church of Scientology dangerous and in conflict w their public policies of public security and refuses van Duyn's entry

-> Yvonne van Duyn not allowed to enter UK bc she is member of church of Scientology

• van Duyn challenges order before national UK judge
  □ UK national judge applies national UK immigration law
• There is EU Directive on Mobility of EU workers:
  □ Provision: ‘‘measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of citizen concerned’’
  - Relevant in this case bc van Duyn has been prohibited entry solely bc she is member of church of scientology - not bc something she individually done
  Had not been implemented in UK national law

**Issue: **
Whether EU Directive on Mobility of EU workers could be applied directly by national judge

Rule + Application:

	- Direct effect Elements:
			
			1. EU MS failed to transpose Directive in time
		->  Yes UK has failed to implement EU Directive on Mobility of EU workers into national law'
		
			2. Is provision unconditional:
			-> Yes: '*'shall be based''*
			
			3. Is provision sufficiently clear:
				- Who has obligation: MS
			-  What is obligation: to not exclude anybody merely on basis of general considerations
				-  Who has right: all EU citizens who want to work in MS
			->  Yes 
			
			4. Is Directive being applied in vertical relationship against state (not horizontally against individual/company)
				->  Yes: applied against state

Conclusion:
-> EU Directive on Mobility of EU workers has not been transposed on time and can be applied directly by national judge because:
□ It is sufficiently clear and unconditional
□ And applied in vertical relationship against state

Question 16

How does the concept of direct effect differ from “direct applicability”?

Answer 16

Direct applicability means that EU law automatically becomes part of national law without further enactment;

direct effect means that individuals can directly invoke these laws before national courts.

Question 17

Does the “direct effect” doctrine imply that all primary EU law provisions have direct effect?

Answer 17

No, only provisions that are sufficiently clear and unconditional have direct effect.

Question 18

Case: Van Gend en Loos (1963)

Answer 18

Direct effect of primary EU law

Facts:
- Van Gend en Loos was transport company that imported smth from Germany to NL
- Received legal order from Dutch customs service ordering company to pay customs duties (5% of value of imported goods)
□ Conflict with EU primary law ( Article 30 TFEU):
(‘‘Customs duties on imports and exports charges having equivalent effect shall be prohibited between MS ‘’)
-> Clear prohibition

• Van Gend en Loos challenges legal order from Dutch customs service before Dutch national judge

Issue:
Can Article 30 TFEU be applied directly in the legal case - does it have direct effect

Application + rule:
2 criteria applied to test direct effect:

1. Unconditional:
   - Can state choose whether to apply rule
   - ‘‘shall be prohibited’’
   ◊ Clear unconditional provision
   ◊ State has no discretion whether to apply
   -> Unconditional Criteria met
2. Sufficiently clear:
   - National judge must be able to apply provision just by looking at it
   - Rule of thumb elements - does provision clarify:
   ◊ Who gets
   ◊ what
   ◊ from whom?

Article 30 TFEU:
◊ Who has obligation: MS (from whom)
◊ What is obligation: not to charge customs duties
◊ Who has right: everybody who imports or exports goods b/w MS

-> Sufficiently clear criteria met

Conclusion:
-> Provision meets criteria of sufficiently clear and unconditional
-> National judge can apply in national laws

Consequences:
Conflict of laws:
□ National law NL says Van Gend en Loos has to pay customs duties
□ EU law says Van Gend en Loos does not have to pay customs duties
-> Doctrine of supremacy/primacy of EU law -> EU law prevails