Chapter 5

Question 1

What is the difference between monism and dualism?

Answer 1

Monism: IL is part of NL and it directly applies to domestic law
Dualism: IL is separate from NL and it need to be transposed or incorporated into NL and may have indirect effects

Question 2

How does monism apply to the EU?

Answer 2

That the Court confirmed the independence of the European legal system from IL and that EU law can be enforced in national courts and individuals are direct subjects of EU obligations and rights

Question 3

What are the two foundational doctrines?

Answer 3

The doctrine of direct effect and the doctrine of primacy

Question 4

Which article acknowledges the three binding legal instruments and the two non-binding? Which is the fourth binding legal instrument?

Answer 4

Art.288 TFEU
Binding: regulations, decision, directives
Non-binding: recommendations, opinions

International agreements is the fourth binding instrument

Question 5

What does it mean direct effect? And which criteria must be applied in order to have direct effect?

Answer 5

Direct effect means allowing EU citizens to rely on EU law in their national courts, when EU law is self-executing.
The Van Gend criteria must be passed in order to have direct effect and the conditions are: clear, precise and unconditional

Question 6

Explain regulations

Answer 6

They are similar to national law, because there is a - set goal
- it is defined how to achieve it (general application)
- it is binding upon everyone (effect on all MS)

Binding regulations leave little room for the MS and they are used when directive are not suitable to achieve the goal.

Question 7

Explain the direct effect of regulations

Answer 7

Regulations have both vertical and horizontal direct effect. EU citizens can rely on EU law in national courts to go against a MS or and individuals but always respecting the Van Gend criteria

Question 8

Explain decisions

Answer 8

Once they come into effect, they are not binding for everyone within the EU
- they can be specifically addressed to MS / companies / individuals
- they can be non-addressed and so they don’t have direct effect
- the direct effect is given only if they respect the three conditions
- there is no general application

Question 9

What is the difference in the process of making decisions, regulations and directives?

Answer 9

Decision can be done only by the Commission, while regulations and directives must be done by the EP, the Comm and the Council

Question 10

Explain directives

Answer 10

Unlike regulations, they don’t say how it must be achieved, they only set the goal and they leave room to the MS on how to achieve it in their national law. The ways in which states obtain the same goal (set in the directive) can differ because the choice of form and methods is left to the national authorities.

Question 11

What are the two characteristics of directives?

Answer 11

1) Directives appear to be binding on states and not within states. There is the necessity to incorporate or implement these directive through national legislation
2) Directives are binding solely on states which is addressed to and so they lack general application

Question 12

What does Art.216 TFEU say?

Answer 12

It says that Union agreements are binding on both the Union and on MS. International agreements are external union law and they are part of the Union’s legal system without the need for implementation

Question 13

What was the initial position of the ECJ for the direct effect of directive?

Answer 13

At the beginning directives were considered not to be unconditional but the ECJ still wanted to give directives direct effect with the Van Duyn case.

Question 14

What happened in Van Duyn?

Answer 14

It is a case concerning the application of a directive with regards to a Dutch woman which was prevented from entering the UK to get a job because considered against the public order.
The UK used a directive in order to prevent the woman from entering their territory.

The question was: can a directive be invoked by an individual’s in a national court even if the state has not implemented it?

The answer was: if the rule contained in the directive satisfied the three Van Gend criteria (clear, precise and unconditional), then it has vertical direct effect.

Question 15

What did the ECJ do after Van Duyn?

Answer 15

It limited the direct effect of directives to vertical relationships in order to punish states for the non-implementation of directives and with the estoppel argument

Question 16

What is the estoppel argument?

Answer 16

It says that states should not be able to profit from their own failure to implement a directive, this is why individuals should not be responsible for the non-implementation of a state directive and so it is binding only on MS.

Question 17

What were the three phases after the no-horizontal-direct-effect (Dori and Marshall)?

Answer 17

1) A broader interpretation of what a state is arose
2) Doctrine of consistent interpretation (Van Colson)
3) General principles behind directives (Mangold)

Question 18

What is the doctrine of consistent interpretation?

Answer 18

The ECJ created a duty on national courts to interpret national law in the light of European law and the duty of implementing a directive by indirect means.
The duty is activated only if the implementation period of the directive has passed.

LIMIT: it is not possible to interpret national law in view of Eu law going contra legem, therefore, by going against the very meaning of national law

Question 19

What is the Van Colson case?

Answer 19

It was a case against an unlawful sex discrimination of a state employer which relied upon the Equal Treatment Directive which was not sufficiently precise to have direct effect.
MS had a duty to take all appropriate measures in order to ensure the fulfilment of the directive and this shows how national courts are required to interpret national law in light of EU law.

Question 20

What is Mangold about?

Answer 20

It is about a German company which dismissed Mr. Helm (52 years old) on the ground of his age, which was allowed by German law at the time.
He claimed that his dismissal was discriminatory and the ECJ was asked to determine whether the German law (which permitted dismissal based on age without justification) complied with EU law and specifically with the principle of non-discrimination.

The ECJ ruled saying that the principle of non-discrimination in ground of age is a general and fundamental principle of EU law which is applicable to all MS. It said that national law should always be interpreted in line with the general principles of EU law.

Therefore, individuals can rely on general principles directly in national courts even in cases in which the EU directive has not been transposed into national law.

Question 21

Why is Mangold so important?

Answer 21

Because it recognised the direct effect of general principle of European law and reinforced their importance.
It clarified the ability of individuals to seek protection against age discrimination in national courts being EU law principles.

It recognised the possibility of individuals to rely on these principles in national courts even in the absence of specific implementing legislation.