Direct Effect Flashcards
Monism and Dualism
Monism - International law and National law are the same system therefore follows that rules of international law are rules of national law (France)
Dualism - International law and National law are separate systems, which means they need to be implemented into the national legal system (UK)
Van Gend Case analysis
Netherlands increased a tariff after EEC treaty came into force, this breached the treaty. It was referred to CoJ.
Teleological Basis - Basis of EEC Treaty is common market, preamble implies not just a mutual obligation but is related to the people as well of each MS.
Textual Basis - CoJ making sure uniform compliance with interpretation, means States have accepted community law as having authority in national courts/tribunals. Implies Community has created new legal order, which states limit their sovereign rights. Not only imposes obligations, but gives rights to individuals. (Not particularly strong argument but interesting, Craig and de Burca)
Practical Reasons - If EEC Treaty Art 12 infringed then it would remove all legal protection of individuals rights in nationals. Must be interpreted as having direct effect
Conditions for Direct Effect
Have to be met in order to satisfy the treaty. Article 12 contains a negative obligation. This is due to it being easier to compel a state not to do something rather than to do it. It must be:
Clear and Unconditional
Contain no reservation on the part of MS
Not be dependant on a positive obligation
Contain a negative obligation
This has been slackened though as rights can be judicially reviewed by the courts.
Also when further measures are needed at national level direct effect now counts
Reyners v Belguim - Freedom of movement has direct effect as it ensures basic principles of the treaty. Harmonisation can’t be hindered by inaction of the Mss
Vertical Direct Effect
Individual invokes a provision of EU Law against a MS
Horizontal Direct Effect
Individual invokes a provision of EU law against a natural or legal persons.
Treaty Provisions - Defrenne v Sabena - Equal pay, less than male coworkers individuals are also bound by treaty provisions. TWF v Viking - Hindering freedom of movement can be reviewed
Regulations - Muñoz v Frumar - ‘Nature of their place in the legal system confer rights and obligations on individual’
Decisions - Grad - Incompatible to be for everyone, it would only be against those who it addresses and if the conditions are satisfied.
Directives - Binding to the aim achieved. Left to Ms to decide so not directly applicable because not binding it it’s entirety. Van Duyn - UK and scientology refused entry as too dangerous. Incompatible if individuals prevented from being able to use it in national courts. Allows for scrutiny from individuals rather than just commission. MS’s fail to implement Directives sometimes
Estoppel - Can’t rely on own failure to preform the directive for it not to be used by the individual
Time-limit - Analysis each individually to see whether they have direct effect
Basis on public policy, which this was so it was sufficient, clear, precise and legally complete
Lack of Horizontal Direct Effect
Marshall v Southhampton and South-West Hampshire Area Health Authority - Retirement age different for different sexes. Breached equal treatment directive could you rely on directives against another individual. Directives are for member states as such could on rely on if it was a public body, rather than a private body.
Compensating for lack of Direct Effect
1) Broadening Concept of the State - Could rely as directive relates to state. Marshall - If able to rely on directive against the State can do so regardless about whether employer or public authority, necessary to prevent states non compliance with community law. Fratelli Costanzo Spa v Comune di Milano - Court holding that individuals can use directives against all levels of government. Foster v British Gas - Body is state body if (i) Provides public service (ii) Under control of State (iii) has special powers
2) Indirect Effect (Harmonious Interpretation) - Von Colson - National court must ensure that interpretation comply with community law so far as given power to do so. Applicable when respondent is an individual or there has been no implementing measures by MS. Scope not in criminal law Case 60/02
3) Incidental Horizontal Effect -Unimplemented directive invoked in a case between individuals to preclude the application of national law. Usually a MS failure to comply with obligation to notify technical regulations to Commission. Non-Notification rendered them inapplicable, but does not render the products unlawful.
4) General Principles of Law -Kücükdeveci - Gives expression to equal treatment, up to MS to put in legal protections that protects these
5) State Liability - Francovich and Bonifaci v Italian Republic - Fail to take necessary measures needed for the directive, there should be reparation if these conditions are met:directive should entail the grant of rights to individuals, possible to identify the content of those rights andcausal link between the breach of the State’ s obligation and the loss and damage suffered by the injured parties
