Direct and indirect effect Flashcards
Dualism
Where international law must be transposed in order to have effect in national courts.
Was monism/dualism choice left to member states?
Yes - as in the European Communities Act 1972 but once a member state was signed in to the EU then all law has direct applicability.
Van Gend en Loos
Established direct effect of EC treaties, which established the ‘new legal order’ distinguishing the EC from other international treaties.
Conditions for direct effect
Set out in Van Gend. The law must be:
- precise
- a negative obligation
- unconditional (without reservations from MS and not dependent on implementing measures)
Direct effect
makes an EU law invocable in national courts and self-executing. It refers to an individual effect
Direct applicability
direct applicability refers to the fact that the legislation requires no implementing legislation within individual member states - they take effect as soon as they are published by the European Commission.
Three binding EU instruments
regulations, directives, decisions
two non-binding
opinions + recommendations.
Ianelli v Meroni
Relaxed the strict test of direct effect in Van Gend to allow ambiguous wording to be directly effective. Defrenne reinforced this.
Reyners
Further relaxed the strict test of direct effect, as a conditional treaty provision was found to be directly effective (it required extra implementation by directives). Sala v Bayern supported this.
Salgoil
found that provisions with reservations could be directly effective.
Van Gend test of direct effect today
a provision will have direct effect when it can be applied by a national court.
Horizontal direct effect
Defrenne established horizontal direct effect, so EU principles were implicitly horizontally directly effective. It was further illustrated in Familiapress v Bauer.
Regulations and direct effect
Regulations are to have general application (Art 288 TFEU) and are always directly effective. They are entirely binding in all Member States and directly applicable, displayed in Zuckerfabric v Council as having legal consequences independent of previous cases.
Legislative discretion stops all regulations having direct effect (Aziendo Agricola Monte Arcosa).
Simmenthal
established the supremacy of EU regulations over national laws.
Decisions and direct effect
Decisions are binding in their entirety on the party to whom they are addressed (288 TFEU). They can have horizontal direct effect when made in specifically addressed decisions (Grad v Finanzant Traunstein [1970]).
Directives and direct effect
Directives are a form of indirect EU law (288(3) TFEU) and are binding on states, not within states. they need to be incorporated through national legislation. They can however be enforced in national courts without being transposed (Van Duyn and then Ratti) but the state must have failed to transpose them (Kolpinghuis Nijmegen [1987]).
No horizontal direct effect rule of directives
Traditionally a no-horizontal-direct-effect rule has been used (Marshall and Faccini Dori) supported by a textual, estoppels, systematic and legal certainty argument but this has been undermined by various exceptions.
Limitations/exceptions to the no-HDE rule
One limitation is a wide view of the state (Foster), an exception is ‘incidental direct effect’ (CIA Security and Unilever), another limitation is the consistent interpretation doctrine (Von Coulson) which creates indirect effects on private parties (Webb). The consistent interpretation doctrine is limited to applying after the implementation period of the directive and is limited to the wording of the decision (contra legem).
Also the incidental horizontal direct effect of directives has been used in CIA Security and Unilever Italia to confer private rights on individuals.
Mangold
Mangold however applied a general principle of EU law through the medium of a directive to have direct effect between two private parties, going against the normative and temporal limitations consistent interpretation. This provides another exception to the no HDE rule.
