Beginning Flashcards
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Dualist vs Monist MS
- dualist: what is passed at international level must also be passed at national level
- monist: once it has passed international level it already becomes applicable
- EU doesn’t really care (DE for all)
def, authority, scope.
Direct Effect:
def: capacity of a union law to be applied in domestic courts.
Van Gend en Loos:
- found that Art 12 was infringed
- authority for direct effect
- must be clear, precise and unconditional
Van Duyn:
- held that directives have direct effect if clear, precise and unconditional.
Faccini Dori
- states directives do not have horizontal effect
- however; provides for indirect effect:
indirect effect:
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Factortame
- i) Rule of law infringed must have intended to confer rights on
individuals
- ii) Sufficiently serious breach: MS seriously disregarded limits of its
discretion
iii) Direct and causal link between the breach of the obligation by the
MS and the damages suffered by individual.
authority, effect
Supremacy
Costa v Enel 1964:
- established principle of Union law supremacy (even newer MS legislation will not take precedence when in conflict with Union law).
- why? Art 288 would be meaningless if state could go around it.
In practice:
- effectiveness principle: EU legal order makes it impossible for MS to accord precedent unilaterally to subsequent measure
- uniformity principle: executive force of EU law cannot cary from one state to another.
SUPREMACY IN PRACTICE
Simmenthal
- all courts have duty to set aside MS law if conflicting.
- any judge can strike down national law if conflicts
Poplawski:
- endorsed ‘trigger model’ ie that supremacy is dependent on DE.
- even if MS law adopted after Union law, must use Union law where conflicting (this is big authority)
- not necessary for courts to request or wait for other constitutional means to approve of dismissing MS law.
- supremacy is little more than a remedy to be administered by MS courts in resolution of disputes involving MS constitutional law.
- it follows that supremacy can only be invoked when constitutional law has been rendered cognizable before domestic courts by satisfying criteria for DE. (ie must prove direct effect before establishing principles of Union supremacy over MS law.
going beyond rights afforded by Union?
Internationale Handelsgesellschaft
- German constitution gave more individual rights than EU, EU said they did not care and these were not to be protected across MS.
Art 4(2) TEU
Horizontal Effect
def: imposes obligations on private parties.
Defrenne v Sabena
- the Article (Art 157 TFEU) lacked clarity (VGL requirement for DE) ‘principle that men and women should recieve equal pay for equal work - found ‘principle’ ‘work’ and ‘pay’ were not specific enough.
- however, ECJ determined that ‘principle’ was w/in meaning of the Article the principle of equal pay and held it to have DE.
- authority for ability to bring claim of horizontal effect.
Egenberger v Evangelisches Werk für Diakonie und Entwicklung
- charter rights can have horizontal effect.
- certain directives are merely indicative or expressive of a right contained in the Charter (as such it makes sense that where precluded bc directive, can still invoke Charter right).
- thus if a national court decides it cannot interpret relevant national legislation in accordance with the directive, a private party can nonetheless at times invoke a Charter right in an action against another private party, and—if the CJEU deems that Charter right to be horizontally effective—the national court may be obliged to disapply the offending national law
Vertical Effect:
Regulations vs Decisions
Regulations:
- Art 288: regulations are binding and directly applicable in all MS.
- regulations have DE (Slaughtered Cow case)
- must also be clear, precise and unconditional (Azienda Agricola Monte Arcosu)
- it is only if the MS alters, obstructs or obsures the DE or nature of a regulation that it will constitute a breach of EU law (Amsterdam Bulb)
-DE of regulations obliges courts and relevant administative authorities to give immediate effect to EU law in practice.
- can give directives horizontal DE when benefits under a regulation are made conditional on compliance with a directive (Viamex)
Decisions:
- Art 288: A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
- decisions can be directly effective (Grad)
- necessary to show that it is clear, precse and unconditional for DE.(Foselev Sud-Ouest)
- usually decisions are not horizontally enforceable (Carp) (case about building regulation)
- a decision must be addressed to the private party for horizontal DE to apply (Blue Air Airline)
Directives
- Art 288: directive is binding as to the result to be achieved, upon each MS addressed, but shall leave authorities the choise and form of methods. (ie national implementation)
- used to harmonise MS law
Van Duyn:
- directives are capable of DE
- must be clear, precise and unconditional (where the content of the individual right can be determined with sufficient precision from the directive.)
- directives **may have DE **similar to regulation after time limit for their implementation has expired.
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Marshall:
- DE of directive only has vertical effect.
- Can only be individual against state, state against individual.
- directives cannot confer obligations on individuals
Portgás
- State can bring DE of directive against another organ of the state (so technically horizontal DE but only in this situation).
Francovich:
- where Directive prevents C from suing individual, C can bring claim against MS for loss caused by the state’s failure to implement a directive.
- only use as last resort (after DE and harmonious interpretation (indirect effect) are deemed unavailable).
Vertical vs Horizontal:
determining whether organ of state or private.
TEST) Foster and Farrell: (can use either)
Foster and Other v British Gas plc [1990]:
- directive could be relied on against organizations or bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable between individuals
Farrell:
suffices for a body to fall within the definition of the state if either:
- (i) it is a legal person governed by public law and hence part of the state in the broad sense; or
- (ii) it is providing a public service under the control of the state or a public body; or
- (iii) it has been delegated the performance of a task in the public interest and to that end has special powers beyond those normally applicable in relations between private individuals. (monopolies)
DE of Directives can be against:
- tax authorities (Becker [1982])
- local/regional authorities (Costanzo)
- constitutionally independent authorities responsible for maintenance of public order and safety (Johnston v Chief Constable of the RUC [1986]
- public authorities providings public health services (Marshall)
indirect effect
Von Colson:
- requires national law to be interpreted in conformity with directives.
- where directive is not sufficiently precise, clear, unconditional the court may use indirect effect to look at aim of directive to interpret MS law.
- expressly identified courts as organs of the state with responsiblity to fulfil EU obligations.
- indirect effect does not require provision of directive to satisfy criteria for direct effect.
- principle of indirect effect flows from primacy of EU law
- applies to all competent authorities caled upon to interpret national law.
Marleasing SA v LA Comercial Internacionale de Alimentacion SA [1990]
- can use indirect effect in horizontal cases between individuals.
- time of implementation does not affect the interpretation obligation.
- unimplemented directives could be relied on to influence interpretation of national law between individuals (horizontal effect)
**Pfeiffer: **
- interprative obligation (indirect effect) applies to national legal system as a whole
- C worked for red cross, claimed they were required to work in excess of 48hr/wk in violation of Directive. ECJ held that directives are not horizontal, but can use interpetative obligation (indirect effect) from Von Colson.
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Koplinghuis Nijmegen:
- obligation of indirect effect must not result in imposition or aggravation of individual’s criminal liability.
Incidental Horizontal Effects:
- permits use of inimplemented directives in certain cases between private parties.
CIA Security International SA v Signalson SA and Securitel SPRL [1996]
- the MS failure to comply with notification obligations under a directive rendered MS law inapplicable.
- basically a directive can be used in cases between individuals only to exclude national legislation (but cannot confer a duty on to an individual) - the result is one party is subject to legal liability or disadvantage.
- in the case the national legislation in conflict was acting to protect one of the parties, once it was removed bc of conflict with Union law the party became protentially liable under other provisions of natioanl law.
Unilever Italia
- directive can be invoked in cases between individuals in order to **disapply MS law. **
- directive cannot create new law, new rights, or new obligations
- rather it leaves a ‘void’ to be filled with other provisions of national law.
Smith v Meade: (?)
- distinguished that directives can have the effect of excluding inconsisten national law, rather than substituting.
- the case called for directives substituting for MS law- so it was found the directive not applicable.
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Directives having horizontal effect and general principles of law
Mangold:
- expiration of directive implementation had not happend.
- case was between individuals
- ECJ held that individuals could rely on general principle of EU law against age discrimination to challenge provisions of fixed-term contract set by employer.
- **individuals can invoke general principles of EU law **
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