Direct Effect Flashcards
What is vertical direct effect
Between a private party and the state
Background on international treaties
In order for an international treaty to be binding, the state must ratify it
Monist: Binding in domestic law upon ratfication
Dualist: Must be incorporated into national leg following ratification in order for it to be binding
IS EU law the same
What case says this
NO
Van gend
Van Gend
Concerned the transportation fo chemcicals between germany and the netherlands
Tarrifs were imposed
Argued that this went against customs provision in EEC treaty
Can individuals take action in domestic courts seeking to enforce Eu law
Germany and netherlands argued no
Held: The EU trary is not like every other inetnational treaty
It created its own legal system or legal order which states are bound to follow
If indivoiduals can enfore the treaty in domestic courts this would increase the effectiveness of EU law cuz if not it would be a job solely for the comission and because the union is so big that would decrease the effectiveness
Criteria for when a provision of treaty will have vertical direct effect as per Van Gend
Present case?
The provision must be clear precise and unconditional
Must not be dependent on further action of a member state/the EU
Present case: provisions of the treaty were sufficiently clear and didnt need any further action therefore direct effect!
NAme of case that alsdo commented on Vertical direct effect of treaty
Defreene v SABENA
Defreene v SABENA
Significanc?
Facts: Concerned an air stewardess in a state-owned Belgium airline.
Women were paid less than men as air stewards.
Relied on Article 157 TFEU: Each Member State shall ensure and maintain the application of the principle that men and women should receive equal pay for equal work.
Held: CJEU agreed.
The provision of the Treaty was sufficiently clear and precise to allow direct effect.
The court acknowledged that there may be situations where implications aren’t clear and precise, ie. The difference in pay for majority-female jobs vs majority-male jobs.
However, where they are doing the same job it is clear.
Significance: Women everywhere in the EU could enforce a right to equal pay from the provisions of the treaty rather than having to wait for the Commission to enforce it.
`what is the primary law of EU
treaty
Charter
Egenberger- direct effect of chartter
Whats the legislation of EU
What article provides dor this
Article 288 TFEU
Regulations/Directives/Decisions
Decisions and Reulations
Regulation: Binding in its entirety and directly applicable in all Member States.
Decision: Binding in its entirety. A Decision which specifies those to whom it is addressed shall be binding only on them.
NB: Regulations and decisions are capable of having direct effect if the criteria are satisfied just like treaties and charter provisions.
Directive and Direct effect
Why are they different?
Because u need further action by implementing the directive into national leg
State seminal case on directives and Direct effect
Van Duyne
Van Duyne
Facts: Concerned a Dutch woman who wanted to move from the Netherlands to the UK to work for the Church of Scientology.
The UK refused entry on the basis that it had a policy against working for the church.
Relevant Directive: Concerned restrictions on free movement; measures restricting free movement must be based exclusively on personal conduct.
Issue: Could a provision of a directive have direct effect?
Held: Normal criteria for direct effect are not satisfied because directives are dependent on further action by a member state to implement them.
However, if directives could never be enforced by individuals, this would undermine the effectiveness of EU law.
Created a crieteria for direct effect of directives:
Must be clear/precise/unconditional.
The time limit for the implementation must have expired.
Present Case:
Because the UK had deemed the Church of Scientology to be socially harmful, it was the plaintiff’s personal conduct that formed the basis of exclusion to the UK.
Therefore the UKs actions were compatible with the directive.
Note: Now very rare circumstances to deny free movement.
Name case on implementation period
Ratti
Ratti
Facts: Concerned a producer of solvents in Italy.
He was labelling solvents in accordance with the standards of the directive.
Italian law had a higher standard, so he was prosecuted for a breach.
The implementation period for the directive had not yet passed
Argued that he could rely on the directive because of direct effect
Issue: Could he rely on the directive?
Held: He could not rely on the Directives until the implementation period expired.
Name case on exception to the implementation period
Envitonment Walloinue v Region Wallone
NB VERY RARE
Envitonment Walloinue v Region Wallone
Facts: An environmental NGO brought a case against a region in Belgium because of their disposal of waste.
The relevant directive had not yet passed its implementation period.
However, the relevant authority in Belgium had taken measures directly contrary to the directive.
Held: There is a residual obligation that during the implementation period, the state must refrain from taking any measures liable seriously to compromise the result prescribed.
The aim of the implementation period is to give time for the states to comply.
If they are doing the opposite, it may be possible to challenge it.
Whats horizontal direct effect
Concerns actions between private parties
Name case on hde of treaties
Bosman
Bosman
Case C-415/93 Bosman [1995] ECR I-4921.
Facts: Concerned a professional footballer whose contract expired and found another club in France willing to sign him.
The buying club had financial difficulties so the initial team refused the transfer on the basis that they did not think they would be able to pay the transfer fee.
UEFA rule: When a football player is transferred from one team to another, the buying club has to pay transfer fees whether or not the contract has expired.
Challenge under Article 45 TFEU which provided for free movement within the EU.
Held: Article 45 applies in this instance.
UEFA Argument: Free movement was an obligation on states and not a private organisation.
Therefore Article 45 is only enforceable against states and not private bodies.
Held: If horizontal direct effect of treaties only applied to states, then EU provisions would risk being not applied depending on who the action is taken against.
Application of direct effect of treaties to both public and private parties will allow EU law to be carried out more effectively.
Conclusion: Article 45 TFEU applies to rules that create barriers to free movement, even if caused by private organisations.
This:
Ensures effectiveness.
Avoid inequalities between states.
Significance: Abolished transfer rules for when a contract has ended.
NB: Van Gend Conditions for Direct Effect apply to horizontal direct effect of a treaty:
Name case on hde of charter
Egenberger
Egenberger
Held: Provisions of the Charter which have direct effect can be enforced against private parties.
Name cases on HDE of directives
Marshall v Southampton
Faccini Dori
Marhsall v Southampton
Facts: Concerned a female dietitian was dismissed at 60, but the retirement age for men was 65.
Sex discrimination applied in the UK but didn’t apply to retirement ages.
Equal Treatment Directive: Prohibited discrimination of women and men in employment.
Uk argument: While she could enforce directives against the state, she couldn’t enforce them against employers.
Held: Directives can have vertical direct effect against the State but cannot have horizontal direct effect against private parties.
However, she was working for the National Health Service, run by the state.
Direct effect applies to whatever capacity in which the states are acting.
Conclusion: Direct effect of the directive allowed.
Facinni Dori
Facts: The plaintiff was in Milan Railway station and was stopped by someone selling English language courses.
She bought it but later cancelled her order.
The company didn’t let her cancel the order.
Relevant Directive: Where you are being sold a product outside of the business premise, you have a 7-day cooling off period to change your mind.
This directive was not implemented in Italy.
Issue 1: Could she rely on the directive?
Held: The obligation under the directive was clear precise and unconditional.
The time limit for implementing the directive had also expired.
However, her case was against a private party.
Issue 2: Could she enforce the directive against a private business?
Held: CJEU stated that directives are addressed to member states.
P20: A Directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual.
Alternative remedies existed:
The duty to interpret national law in light of the directive.
State liability: Duty on the member state to be liable for the damages caused by failing to implement the directive.
Opinion of Ag in Facini dori
Provided reasons to permit horizontal direct effect.
Equality of conditions of competition within the single market.
Expectation that Union citizens enjoy equality before EU law.
Directives often aim to protect weaker parties (eg consumers).
Not unreasonable to expect private actors to comply after the transposition period.
Controversy:
The business was complying with national law.
The time limit had expired on implementing the directive.
Businesses shouldn’t be allowed to avoid following a directive because their national law didn’t implement it in time.
Just as individuals are expected to know and comply with legal obligations, businesses should also be aware of their responsibilities under a Directive, especially if it has direct effect at state level.
Wide reading of the state
State cases
Foster
Farrell v Whitey
Foster
Facts: Concerned female employees who were dismissed at the age of 60 whereas males were dismissed at 65.
British Gas, a nationalised company, argued that they were not part of the state.
Claimed that they’re an autonomous company.
Held: Direct effect is possible against:
Bodies which were subject to the authority/ control of the State.
Bodies given special powers beyond those which result from the normal rules applicable to relations between individuals..
Conclusion: BG had provided a service under state control.
They had special powers because it was a monopoly, ie. Private companies were not allowed to provide gas.
Therefore direct effect of the directive is possible.
Farell. Whitey
Facts: The plaintiff was riding in a van that was not designed to carry passengers.
They were injured and sought to recover damages.
The driver of the van was uninsured, this was not in breach of Irish law.
Motor Insurers Bureau: Provide compensation to those injured with no insurance.
The Irish law stated that this provision only applied to vehicles that were designed to carry passengers.
EU Motor Insurance Directive provided compensation for anyone who was injured regardless of the design of vehicle.
The plaintiff sought to enforce the provision of the directive.
MIB argument: They are not a part of the state and therefore a directive cannot be enforced against them.
Held: CJEU stated that the Foster criteria do not all need to be present.
An organisation that a Member State has:
Delegated the performance of a task in the public interest.
Possesses special powers for that purpose beyond those which result from the normal rules applicable to relations between individuals.
Is capable of having a directive being relied upon for direct effect.
NB: It doesn’t matter if the body is private or public what matters is if it performing something on behalf of the state.
Conclusion: MIB was performing a task in the public interest and was given special powers.
Opinion of Ag
Response by CJEU
Opinion of the Advocates General: The real solution to these scenarios is to allow directives to have horizontal direct effect.
CJEU:
Reaffirms that directives do not have horizontal direct effect.
