Basic Principles of EU law

Question 1

Why is EU law applicable?

Answer 1

Because primacy of EU law:

• 1st - Check in conform interpretation is possible
• 2nd - Check if direct effect is possible
• 3rd - Check if state liability is possible

Question 2

Do directives have direct effect? Under what criterion?

Answer 2

1. Yes! But only vertical (Van Duyn), never horizontal(Marshall)!
2. Criterion:
   - 1st - Vertical relationship
   - 2nd - After transposition period
   - 3rd - Van Gend & Loos, clear, precise and unconditional

Question 3

Principle of primacy

Answer 3

1. Does it exist? Yes! Costa/ENEL
2. Applies to all national law
3. Consequences:
   - National legislator must change/adopt now legislation - Simmenthal
   - National courts must set aside conflicting legislation
4. Not codified in the Treaties but in a declaration

Question 4

MS liability for damages

Answer 4

1. Conditions (same as EU liability), Francovich and Brasserie du Pêcheur:
   - 1st - Provision confers rights
   - 2nd - Breach is sufficiently serious (Is there discretion? No = Simple breach suffices // Yes = more difficult to establish)
   - 3rd - There is a direct causal link between the breach and the damages
2. Done via national procedure:
   - Respecting the principle of equivalence – Claim for damages must not be mess favourable than claims based on national law
   - Principle of effectiveness – Must not be impossible or excessively difficult

Question 5

Van Gend en Loos

Answer 5

Established criterion for direct effect, the provision must be:

1. Clear
2. Precise
3. Unconditional
   (4. No implementing measures) - Deleted by Defrenne

Question 6

Why do directives not have direct effect?

Answer 6

1. Because addressed to MS, not to individuals (Foster case – Public service, controlled by the state with special powers)
2. Because horizontal relationships stretch quite a bit
3. Because interpretation of national law must be in conformity with EU law (but no contra legem and no retro-activity) - Marleasing and Van Colson case
4. Because state liability for damages