Direct and Indirect Effect

Question 1

Art.288 TFEU

Answer 1

Sets out the legal effect of EU legislative instruments.

• Regulations have general applicability - so do not need to be ratified in order to be legally effective.
• Directives are binding on MS as to the result to be achieved - they set out what results must be achieved, and allow MS to implement these as they wish

Question 2

Van Gend en Loos

Answer 2

Introduced the principle of direct effect - Treaty provisions do NOT need to be implemented by MS in order to have legal effect. This was seen as necessary for ensuring compliance with and effectiveness of EU law. EU measures are directly effective provided that they are self-executing. Two requirements for self-executing:

1) Sufficiently precise and clear
2) Unconditional

Question 3

Costa v ENEL

Answer 3

Set out the principle of primacy of EU law for the first time - where there is a conflict between EU law and domestic law, EU law MUST prevail

Question 4

Simmenthal (No.2)

Answer 4

Due to the primacy of EU law, national courts must disapply domestic legislation where it conflicts with EU law - national courts are responsible for enforcing EU law

Question 5

Factortame (No. 2)

Answer 5

If it is not fully clear whether a domestic legislative provision is inconsistent with EU law, then domestic courts should suspend the domestic measure and apply the EU law until the CJEU makes a determination of compabitibility

Question 6

Molkeri-Zentrale

Answer 6

Unconditional, for the purposes of self-executing measures, means that the provision is NOT subject to the taking of any other EU measure or MS measure - either in its implementation or effect

Question 7

Marshall v Southampton AHA

Answer 7

Sufficiently precise = where the obligation which the EU measure imposes is set out in ‘unequivocal terms’

Question 8

Defrenne v Sabena (No.2)

Answer 8

Treaty Articles also have horizontal direct effect, so they can be relied upon against private actors/entitites

Question 9

Van Duyn v Home Office

Answer 9

Directives have direct effect where they are vertical - i.e. directives only have direct effect where the provisions are relied upon against the MS. Court gave two reasons for this:

1) Functional - necessary for the effectiveness of EU law for directives to be binding
2) Textual - Art. 267 TFEU allows national courts to refer questions on any EU measure to the CJEU, including directives - this suggests that directives should also be capable of being relied upon by individuals in domestic courts

Question 10

Ratti

Answer 10

However, directives are generally only binding after the period of transposition has expired. The directive sets out the time by which the result set out in the directive must have been achieved by, and if it has not been transposed during this period, then citizens can rely on the provisions of the directive in national courts - even if the measure has not been implemented into domestic law

Question 11

Marshall v Southampton AHA

Answer 11

However, directives do NOT have horizontal direct effect. The main reason given for this was that under Art.288 TFEU, directives are only binding as to the result achieved against the MS to which they are addressed

Question 12

Foster v British Gas

Answer 12

CJEU held that vertical direct effect applies to any emanations of the state. Court identified two factors used to determine whether a body is an emanation of the state:

1) Performing public service under the control of the state
2) Body is exercising special powers beyond those it would normally enjoy in carrying out a particular function

Question 13

Rolls Royce v Doughty

Answer 13

Even if a body is fully owned by the state, if it is NOT exercising a public service and is instead carrying out a purely commercial undertaking, then it is not an emanation of the state

Question 14

Rieser v Asfinag

Answer 14

Where the state is the body’s main shareholder and it is authorised with carrying out a particular function for which it must report back to the state and the state exercises some control over its functions, then it is likely that the body is an emanation of the state

Question 15

Kampelmann

Answer 15

This loosened the requirements for emanation of the state - only ONE of the factors set out in Foster v British Gas need to be met for a body to constitute an emanation of the state

Question 16

CIA Security International

Answer 16

Incidental horizontal direct effect - direct effect for directives can be relied upon where the EU measure has an exclusionary effect, rather than a substitutionary effect. So this occurs where a directive has not been transposed - citizen can invoke their rights under the directive in a domestic court against a private actor where the directive has the effect of excluding a national legal provision that was previously preventing the individual from enforcing their rights under the directive

Question 17

Unilever v Central Food

Answer 17

CJEU affirmed the principle of incidental horizontal direct effect laid out in CIA Security International - can be relied upon by citizens in courts even where the directive has not been implemented into national law.

Question 18

Arcor v Germany

Answer 18

Mere adverse repercussions on the rights of third parties do NOT justify preventing an individual from relying on a directive against the MS - so removing a particular benefit hitherto enjoyed by third parties is NOT horizontal direct effect, and therefore is valid

Question 19

Mangold v Helm

Answer 19

Horizontal direct effect through general principles applies in two circumstances generally:

1) Where the directive has not been transposed
2) Where the directive has been transposed in such a way that is contrary to general principles of EU law

So where the provisions in the directive uphold a general principle of EU law, this can be relied upon horizontally regardless of whether it has been transposed or not = horizontal direct effect through general principles of EU law.

Horizontal direct effect through general principles ALSO applies where the MS has incorrectly transposed a directive in such a way that is contrary to a general principle of EU law - this can be done once the directive has been implemented contrary to a general principle of EU law, BEFORE the period of transposition has ended.

E.g. Germany had done this in Mangold by transposing the directive, but only banned fixed term contracts for those under the age of 52.

General principle of EU law MUST come from a pre-existing common legal principle across the MS, e.g. Art 27 TFEU on the principle of non-discrimination

Question 20

Applying Horizontal D.E in PQ

Answer 20

Generally apply Ratti - only direct effect of directives once the period of transposition has ended (and generally only can be relied upon vertically).

However, where the directive upholds a general principle of EU law, then this may be relied upon before the period of transposition has ended - and can even apply horizontally

Question 21

Association de Mediation Sociale

Answer 21

Ratified EU Charter provisions (e.g. Charter of Fundamental Rights of the EU) are NOT sufficient in themselves for horizontal direct effect through general principles to apply - there must be a directive which seeks to uphold the general principle in some way for horizontal direct effect of those rights to occur.

So if there is NO EU directive affirming the general principle of EU law, then there is no horizontal DE through general principles. Don’t need national law for horizontal DE to apply - just if there is national law/incompatible transposition with general principles, there is horizontal D.E through general principles for citizens to rely on their rights

Question 22

Von Colson

Answer 22

Indirect effect - national courts have an obligation to interpret national law in light of any EU directives. This means that when considering what a particular national provision means, it must be read in such a way that is compatible with the EU directive insofar as is possible

Question 23

Marleasing SA

Answer 23

1) Indirect effect applies to directives that have not been transposed yet - national courts still need to interpret national law in light of these directives.
2) Indirect effect also acts HORIZONTALLY in addition to vertically - acts as an exception to no horizontal direct effect
3) Indirect effect also applies to PRE-EXISTING national law - so even if that national law has traditionally been interpreted in a certain way, if a directive is then introduced, the national court may be under an obligation to reinterpret the law in light of the directive

Question 24

Wagner-Miret

Answer 24

Indirect effect does not apply where interpreting the domestic law in light of the EU directive would be contra legem - i.e. where doing so would go against the very meaning of the law itself. So in this case the Spanish law explicitly stated that the rule did NOT apply to those in senior positions, whereas the directive said that all employees were entitled to the right.

So where the courts cannot make a compatible reading, indirect effect does not apply.

Question 25

Marks and Spencer v Commissioners of Customs and Excise

Answer 25

Interpretative obligation on national courts continues to apply even after the transposition of the directive into national law

Question 26

Pfeiffer v Duetsches Rotes

Answer 26

The entire national legal system as a whole also needs to be interpreted in light of a relevant EU directive - so extends beyond just national law being interpreted = expansion by the courts

Question 27

Dominguez v CICOA

Answer 27

National courts are under an obligation to use indirect effect as widely as possible - indirect effect only does not apply where the interpretation of national law in light of the directive would be contra legem

Question 28

Wallonie

Answer 28

MS are under an obligation not to adopt measures which would seriously undermine the result of the directive - even before the transposition period has ended.

If the MS does this, then an individual can inform the EU Commission which will in turn bring a claim against the MS, and the national measure that seriously undermines the result of the directive will be disapplied by the CJEU

Question 29

Adeneler

Answer 29

Indirect effect can only be used after the time limit for the implementation of a Directive has expired