1 - EU Law and National Law: Supremacy, Direct, Effect, Indirect Effect and State Liability Flashcards
What were the 3 founding treaties?
- ECSC treaty
- EEC treaty
- Euroatom Treaty
What is the power of Article 169 EEC?
- Empowered commission to bring a case to the court of justice against MS for NOT fulfilling its Treaty obligations
- This is now Article 158 TFEU
What is the power of Article 170 EEC?
- Provided that MS may do the same against another MS
- This is now Article 259 TFEU
Van Gend En Loos?
- Dutch authorities increased duty payable from 3-8%
- Argued that Article 12 EEC was contrary to this rise in duty payable.
- Held: EEC treaty was MORE than just an regular international agreement which merely created mutual obligations between states
- Contained clear and unconditional prohibition on Member States
- Established that treaty articles can have effect directly within the national legal systems of the MS
• By conferring individual rights
• Which national courts are required to protect
• This known as principle of direct effect
What is the principle of direct effect?
- Principle that treaty articles can have effect directly within the national legal systems of the MS
- By conferring individual rights
- Which national courts are required to protect
- So rights conferred under the treaty can be relied upon and enforced in proceedings brought in national courts.
- Big step in achieving the integration of EU law within those National legal systems.
Costa v ENEL
- Principle of supremacy in EU law: how conflicts between national and EU law should be addressed/ resolved.
- Costa = shareholder in italian company that was nationalised.
- Under this nationalisation became responsible for producing and distributing electricity in Italy.
- Costa would not pay electricity bill when issued by ENEL + argued that the nationalisation legislation was contrary to Community law.
- Held: Treaty had established new legal order in which they had limited their sovereign rights.
- Requirements under Article 288 TFEU = Regulations shall be binding and directly applicable in all member states
In Costa v ENEL what was said re direct applicability? Which article was mentioned?
- Requirements under Article 288 TFEU = Regulations shall be binding and directly applicable in all member states
- Would be meaningless if national law could prevail over Community law
- This is the principle of Supremacy in EU law
Internationale Handelsgesellschaft v Einfuhr
- Principle of supremacy of EU law
- EU law = took precedence even over the national constitutional law of a Member State
- Including fundamental rights provided by that constitution
- Also added that the protection of fundamental rights was a general principle of EU law
Amministrazione delle Finananze dello Stato v Simmenthal SpA?
- Principle of supremacy of EU law
- Court of justice added that a national court must not wait for a national measure, which conflicted with EU law
- To be set aside by a national authority
- Italian court had to give effect to an EU Regulation which conflicted with national law
- Without waiting for the Italian Constitutional Court to set aside the offending national law
What is “directly applicable” and when is it used?
- Used in Article 288 TFEU which specifies the forms of secondary legislation that the institutions of Community must use
- To fulfil the objects of the treaty
What is a “regulation”
- Described as being of “general application”
- Binding in its entirety and directly applicable in all MS
- Regulation does not need to be implemented into the domestic law of MS
- Once adopted, automatically becomes part of their domestic law
- Contrasts with directives
What do “regulations” contrast with?
directives
How and where are “directives” described?
- Article 288 TFEU
- Binding only “as to the result to be achieved” whilst leaving to MS the “form and method” of their achievement
- Require MS to take national measures to implement the terms of a directive into their domestic law
- Therefore unlike regulations they are not directly applicable
What is the Van Gend En Loos criteria for direct effect?
- Sufficiently clear and precise to give rise to an identifiable individual right
- Unconditional
- These requirements arise from Cooperativa Agricola Zootecnica S. Antonino v Amministrazione delle finanze dello Stato
Defrenne v SABENA
- Example of how VGEL criteria for direct effect work in practice
- Action against employer for sex discrimination in terms of pay - amounted to direct discrimination
- Maintained Article 119 EEC / Article 157 TFEU infringed
Which cases discuss if a term is sufficiently clear and precise?
Ø Von Colson & Kamann v Lord Nordrhein-Westfalen
• 2 women failed their applications to be social workers on grounds of their gender.
• Only compensated their travel costs under German Law.
Ø Francovich v Italian Republic
• Court had to consider Directive 80/987 which wanted to ensure that in the event of bankruptcy of a company its employees would be able to get outstanding wages from guarantee insitution established by MS.
What does Article 6 of the Equal Treatment Directive say?
- Member states should introduce into their national legal systems
- Measures which are necessary
- To enable all persons who consider themselves wronged by the failure to apply to them the principle of equal treatment,
- Within the meaning of Articles 3,4,5
- To pursue their claims by judicial process after possibnle recourse to other competent authorities
Alfons Lutticke GmbH v Hauptzollamt Saarlouis
- If can have direct effect on things that are POSITIVE obligations
- Case concerned the scope of Article 110 TFEU
- This includes a prohibition on MS introducing internal taxation measures which discriminate against the goods of other MS.
- At the time treaty was first agreed to, it imposed a positive obligation on MS to remove by 1st Jan 1962 any existing measures which had such discriminatory effect
- Held: no discretion left to MS to give effect to the positive obligation regarding removal of discriminatory internal taxes, once 1st Jan 1962 deadline had passed
- At this point provision became directly effective.
What is vertical direct effect?
- When it is possible for treaty articles to have direct effect against the State and organs of the State.
What is horizontal direct effect?
- Question of if a treaty article could have direct effect against private individuals + private bodies.
- Was held that a treaty could do so in Defrenne v SABENA
Defrenne v SABENA
- Court of justice held that a treaty article could have direct effect against private individuals and private bodies
What does Article 288 TFEU say?
- That regulations and decisions are forms of binding EU law
- Both are capable of being directly effective (found by the court of justie)
Franz Grad v Finanzamt Traunstein?
- Regulations are directly applicable
- And therefore capable of producing direct effects
- Capacity of decisions to have direct effect was established in this case.
- Would be incompatible with the binding effect of decisions by Article 288 to exclude in principle the possibility that people affected may invoke the obligation imposed by a decision.
- Put in doubt by Politi s.a.s v Ministry for Finance of the Italian Republic.
What did Antonio Munoz y Cia SA v Frumer Ltd say
- Regulations can have direct effect HORIZONTALLY against private parties, must comply with VGeL criteria
What was found in Azienda Agricola Monte Arcosu Srl v Regione Autonoma della Sardegna?
- Court of justice found that the provisions of 2 regulations did not have direct effect
- Because those provisions specifically required MS to define the phrase “farmer practising farming as his main occupation”
- MS had to take further measures to implement these provisions
What did Carp Snc di L. Moleri e V. Corsi v Ecorad Srl find?
- Followed on from Franz Grad v Finanzamt
- Decision can only have direct effect against the party to whom the decision was addressed.
Grimaldi v Fonds?
- Recommendations and opinions are not binding forms of EU law
- And therefore cannot have direct effect.
What is the direct effect of directives?
- They are binding form of EU law
- Article 288 TFEU = directives are only binding on MS.
- Always have to be implemented by those MS.
- Indicates that they could not have direct effect seemingly because they are inherently conditional - therefore fail VGeL test.
Which case said directives can have direct effect if they satisfy VgEL criteria? What happened in this case?
- Van Duyn v Home office.
- Dutch scientologist, refused secretary work in london.
- Refused entry into UK
- Article 45 TFEU - free movement of workers subject to derogations on ground of public policy, security and health.
- Directive 2004/38 contains derogations
- Held that this directive had direct effect
Pubblico Ministero v Ratti?
- Held: MS cannot rely against individuals on its own failure to perform the obligations that the Directive entails.
- Got rebellious national courts to accept the direct effect of directives.
- Also has informed the principles that the Court subsequently developed, to govern effect of Directives.
What does Article 297 TFEU say about the implementation of directives?
- Must be implemented by date specified in directive or within 20 days of publication
- In Ratti, was held that directive can only have direct effect once deadline for its implementation has passed - not beforehand.
What are the details of the case Pubblico Ministero v Ratti?
- Head of a company
- Whose board of directors decided to package solvents in conformity with Directive 73/173
- And to apply Directive 77/728 which had not been implemented into Italian law - was prosectued for infringing Italian law which was more stringent than directives.
- Ratti sought to rely on the directives in his defence.
- Coj: found that directive had direct effect because the deadline for its implementation had passed.
- This concerned a simple failure to implement a Directive.
What was the case before Ratti?
- Court had already established that a Directive could have direct effect where a MS has only partially / incorrectly implemented it
- Verbond (VNO) case.
- Therefore someone can rely on a directive in the national court where the directive has not been implemented at all by that MS / has been partially or incorrectly implemented
- As long as the implementation date for that directive has passed and its provisions satisfy the other conditions for direct effect.
Marks & Spencers v Commissioners?
- Held: even when a directive has been completely and correctly implemented into national law by the MS
- An individual may continue to rely upon a clear, precise and unconditional directive in their national court
- “where the national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by it”
Which case established that Directive can have vertical direct effect against the State?
Van Duyn
What was held in Marshall v Southampton (Teaching)
- Directive cannot have direct effect against a private entity
- Under Article 288 TFEU it is only binding on MS to whom it is addressed.
Female dietician who was dismissed on the ground that she had passed compulsory retiring age (60)applicable to women. Male employees could continue to work until they were 65.
What happened in Dori v Recreb Sri?
- Was confirmed that directives can only have vertical direct effect.
What did the Marshall (Teaching) judgement make clear?
- That directive could be relied upon against a health authority because health authority was an organ of the state
Which case said directives were relied on against TAX authorities?
- Becker v Finanzamt Munster Innenstadt
Which case said directives were relied on against LOCAL or REGIONAL authorities?
- Fratelli Constanzo Spa v Comune di Milano
Which case said directives were relied on against CONSTITUTIONALLY INDEPENDANT police force responsible for maintenance of public order and safety?
- Johnston v Chief Constable of the RUC
- This case introduced the term “emanation of the state”
What happened in Foster v British Gas?
- Specific criteria for organ / emanation of the state created
- 6 women who were forced to retire at the age of 60 in accordance with the policy of British Gas, 5 years earlier than males.
- Wanted to rely on Directive 76/207
- Held: British Gas was a body that had to rely directly upon Directive 76/207
- They did this by summarising the broad powers and duties that British gas had
What is included in step 1 (bipartate test) of establishing an emanation of the state?
What is included in step 1 (bipartate test) of establishing an emanation of the state?
- Noted types of bodies that had already been treates as emanations of the sate
- Held in paragraph 18: that directive could be relied on against organisation / bodies which:
• Subject to authority beyond control of the state
• OR have special powers beyond those which result from the normal rules applicable to relations between individuals.
What is included in Step 1 (tripartate test) of establishing an emanation of the state?
- Body made responsible for providing public service
- Under the control of state AND
- Has for that purpose special powers beyond those which result from normal rules applicable in relations between individuals.
Foster v British Gas (No. 2)
- Applied the tripartate test
- Held: British Gas WAS an emanation of the state.
- Under the Gas Act 1972 - they provide a public service by giving gas to state citizens
- Did so under the control of the state
- Have special monopoly power, under which it can prevent anyone else from supplying gas in UK without its consent.
Doughty v Rolls Royce tripartite test result?
- Tripartite test was used:
- Held: Rolls Royce was not an emanation of the stae, despite all of its shares being owned by Government + its nominees
- Operated as commercial undertaking
- Which traded with government on an “arms length” commercial basis
- Not providing public service and did not have any special powers.
- Tripartite test not to be used in every case
Griffin v South West Water Services Ltd
- Held: privatised water company satisfied all 3 elements of tripartate test. RUS
- Responsibility for a public service: made responsible pursuant to a measure adopted by the State for providing a public service: sec of state made it the water and sewage undertaker for the south west
- Had range of special powers e.g. to impose hosepipe bans, to make by-laws, to enter land and lay pipes.
