Direct Applicability And Effect Flashcards
Van Duyn
Criteria for whether a provision of community law has direct effect
- needs to be clear and precise
- unconditional without exceptions
- does not require any further measures to be implemented by the MS
Van gend en Loos
Tried to enforce Art 30 (prohibition of customs duties and charged on imports/exports and any equivalent measures - Van Gend could enforce this against the Dutch government if
- provision is clear and precise
- provision is unconditional and not dependent on other legal provisions
- must confer a specific right upon which a citizen can base a claim
If these are met provisions of the treaties can be given the same legal effect as regulations under Art 288 TFEU
Established the classic understanding of direct effect – the immediate enforceability by individual applicants of those provisions in national court
Van Duyn criteria 1 : needs to be clear and precise
Those treaty articles that are general will not suffice. Art 4(3) of TEU is an example “ union and MS shall in full mutual respect assists each other in carrying out tasks which flow from the treaties” - General and insufficient to cause a direct effect application
Van Duyn criteria no 2 : unconditional without exceptions
Provisions should not be dependent on other provisions or actions and must be self sufficient. Art 30 is a good example - prohibition of customs duties and charges
Van Duyn criteria no 3 : does not require any further measures to be implemented by the MS
Means that direct effect is postponed until the deadline for implementing a measure has passed and is more applicable to directives than to primary EU law
Definition of Direct Applicability
Refers to the means or mode of incorporation or the way in which international law finds validity in national legal systems - international law automatically binding in national states
Definition of Directly Effective
Term given to judicial enforcement of rights arising from provisions of EU law which can be upheld in favour of individuals in the court of MS
Direct Effect
The right to rely directly on EU law in the absence of national law or in the face of conflicting national law
- can apply to articles of treaty, regulations, directives and decisions – any binding law in terms of Art 288 TFEU
Direct Applicability v Direct Effect
DA– mode of incorporation ; can only apply to some forms of law
DE– judicial development for the enforcement of rights ; can apply to all forms of law
Are directives directly applicable?
NO
- directives can only apply to persons whom they are addressed
- they are no self executing and in most cases must be transformed by national legislation into national law
- can give rise to vertical direct effect (horizontal - questionable will be discussed in other cards )
Definition of a Regulation
General provisions of legislation applicable to all legal persons in the EU rather than to specific individuals or groups
- detailed form of legislation to ensure that the law in the MS is exactly the same
- become legally valid in the MS without any need for implementation and this process is sometimes described as self executing
Commission v Italy (slaughtered cows)
MS cannot subject the regulation to any implementing measures than those required by the act itself
Commission v UK (tachographs)
Circumstances where MS are required to provide implementing measures to ensure the effectiveness of the regulation.
Definition of a Directive
Set out aims in which must be achieved but leave the choice of the form and method of implementation to the MS
-MS are given a period in which to implement directives which can range from one year to five or more depending on the complexity of the subject matter and the urgency for legislation
Regulations v Directives
D:
- aimed at MS or named individuals
- require some form of implementation in order to take effect or have validity in the EU legal order
- designed with the harmonization of different national rules in mind
- more likely to be framework provisions laying down general guidelines and are therefore less precise by nature
R:
- apply to everyone
- directly applicable (Art 288)
- aimed to be prescriptive by providing one rule for the whole of the EU
- detailed and precise
Verbond van Nederlandse
Although directives are not directly applicable in that they are not automatic or general in application and give rights without further implementation, directives have been held to give rise to directly enforceable rights in specific circumstances ie. where they have not been implemented or have been incorrectly implemented
Marshall v Southampton and South West Health Authority
Court of justice decided that directives could not give rise to rights which could be enforced against other individuals (horizontal direct effect)
Pubblico Ministero v Ratti
Held that if the time limit given for the implementation of the directive has not expired it cannot have direct effect
- directives are only directly effective if the prescribed date by which the MS should have implemented it had passed
Defrenne v SABENA
Directive must give clearly identifiable rights to individuals
- EU court decided that “the principle that men and women should receive equal pay laid out in Art 157 TFEU may be relied inn before national courts - these courts have a duty to ensure the protection of rights that the provision vests to the individual”
Conditions to enforce direct effect of directives
A) directive must give clearly identifiable rights to individuals (Dafrenne v SABENA)
B) the time limit for the MS to implement the directive must have passed (Pubblico Ministero v Ratti)
C) directive can be enforce only against the state (vertically) (Marshall v Southampton and South West Health Authority)
